JOHN  MARSHALL 

LIFE,  CHARACTER  AND 
JUDICIAL  SERVICES 


As    Portrayed    in   the    Centenary  and    Memorial    A 

dresses  and  Proceedings  Throughout  the  United 

States    on   Marshall    Day,    1901,  and  in  the 

Classic    Orations    of    Binney,    Story, 

Phelps,    Waite    and    Rawle 


Compiled  and  Edited  with  an  Introduction 
By 

JOHN  F.  DILLON 


ILLUSTRATED  WITH  PORTRAITS  AND  FAC 


IN  THRE,E  VOLUMES 


VOLUME    I 


CHICAGO 

CALLAGHAN  <&  COMPANY 

1903 

.TIAflTflOS   MIM3M   .73 

.noitouboiqefl  8'ien>loBl^   moi^ 


ST.   MEMIN  PORTRAIT. 

From   Klackner's  Reproduction. 


JOHN  MARSHALL 

LIFE,  CHARACTER  AND 
JUDICIAL  SERVICES   . 


As    Portrayed    in   the    Centenary  and    Memorial    Ad 

dresses  and  Proceedings  Throughout  the  United 

States    on   Marshall    Day,    1901,  and  in  the 

Classic     Orations    of    Binney,    Story, 

Phelps,    Waite    and    Rawle 


Compiled  and  Edited  with  an  Introduction 
By 

JOHN  F.   DILLON 


ILLUSTRATED  WITH  PORTRAITS  AND  FAC-SIMILE 


IN  THRE,E  VOLUMES 


VOLUME    I 


CHICAGO 

CALLAGHAN  &  COMPANY 

1903 


OF  THE 

|    UNIVERSITY   V 

OF 


6ENEBAL 


COPYRIGHT,  1903, 

BY 
CALLAGHAN  AND  COMPANY. 


STATE  JOURNAL  PRINTING  COMPANY, 
PRINTERS  AND  STEREOTYPERS, 
MADISON,  \vis. 


TABLE  OF  CONTENTS. 


Vol.  Page. 

INTRODUCTION I  vii 

Commemorative  Proceedings  and  Addresses  on  John 
Marshall  Day,  1901,  in  the  various  States  and 
Territories  of  the  Union: 

ARKANSAS Ill  1 

CALIFORNIA Ill  178 

COLORADO    Ill  95 

CONNECTICUT I  310 

DELAWARE I  507 

DISTRICT  OF  COLUMBIA I  1 

FLORIDA II  166 

GEORGIA II  110 

IDAHO Ill  197 

ILLINOIS II  300 

INDIANA II  280 

IOWA II  427 

KANSAS , Ill  43 

LOUISIANA II  141 

MAINE I  96 

MARYLAND II  1 

MASSACHUSETTS I  194 

MICHIGAN II  172 

MISSOURI II  487 

MONTANA Ill  206 

NEBRASKA Ill  65 

NEW  HAMPSHIRE I  133 

NEW  JERSEY I  427 

NEW  MEXICO Ill  163 

NEW  YORK  . I  338 

NORTH  CAROLINA II  68 

NORTH  DAKOTA..                                                    .  Ill  136 


12 


John  Marshall  Memorial.  iv 

Commemorative  Proceedings  and  Addresses— con. 

Vol.  Page. 

OHIO II  218 

OREGON Ill  212 

PENNSYLVANIA I  439 

RHODE  ISLAND I  279 

SOUTH  CAROLINA II  92 

SOUTH  DAKOTA Ill  145 

TENNESSEE II  190 

VIRGINIA I  43 

WASHINGTON Ill  242 

WEST  VIRGINIA II  42 

WISCONSIN II  412 

EULOGY  OF  HORACE  BINNEY Ill  281 

EULOGY  OF  MR,  JUSTICE  STORY Ill  327 

ADDRESS  OF  EDWARD  J.  PHELPS Ill  381 

ADDRESS  OF  CHIEF  JUSTICE  WAITS Ill  402 

ORATION  OF  WILLIAM  HENRY  RAWLE Ill  408 

RESOLUTIONS  OF  BAR  ASSOCIATION  OF  PHILADEL 
PHIA,  1831 Ill  430 

ADDRESS  OF  NATIONAL  COMMITTEE  OF  AMERICAN 

BAR  ASSOCIATION  ON  JOHN  MARSHALL  DAY...  Ill  434 

TABLE  OF  CASES Ill  439 

INDEX  TO  THE  WORK.  .                                          .  Ill  445 


ANNOUNCEMENT  BY  PUBLISHERS. 

The  publishers  have  arranged  to  issue  uniform  with  the  present 
work  an  edition  of  Marshall's  constitutional  decisions  and  writings 
annotated,  with  the  assistance  of  the  present  Editor,  by  George  S. 
Clay  and  John  M.  Dillon  of  the  New  York  Bar. 


ILLUSTRATIONS,  VOL.  L— EXPLANATORY  NOTES. 


PORTRAIT  OF  MARSHALL       -       -       Frontispiece 

The  portrait  of  the  Chief  Justice,  frontispiece  of  the  present  vol 
ume,  is  from  a  crayon  by  the  celebrated  French  artist  St.  Memin, 
made  in  March,  1808,  when  Marshall  was  in  the  fifty-third  year  of 
his  age,  that  is,  about  six  years  after  his  appointment  as  Chief  Jus 
tice.  Chretien,  another  French  artist,  had  in  1786  invented  an  in 
strument  called  the  "  physionotrace,"  by  means  of  which  a  profile 
outline  of  a  face  in  figure  and  dimensions  could  be  taken  with  the 
utmost  precision,  and  St.  Memin  had  constructed  such  an  instrument 
for  himself,  filling  in  the  outline,  as  in  this  instance,  with  crayon, 
generally  black  on  a  pink  background.  He  visited  the  United  States 
and  executed  hundreds  of  portraits.  The  original  of  Chief  Justice 
Marshall,  of  which  the  frontispiece  engraving  by  Klackner  is  a  copy, 
is  now  owned  by  Mr.  Thomas  Marshall  Smith,  of  Baltimore,  whose 
mother  was  a  daughter  of  the  Chief  Justice's  eldest  son.  The  por 
trait  is  the  only  one  of  Marshall  at  that  age,  has  always  remained  in 
the  family,  and  is  regarded  by  them  as  an  excellent  likeness.  Of  the 
present  engraving  after  that  portrait,  made  from  the  reproduction 
by  Mr.  Klackner  of  New  York,  Mr.  Smith  says  that  "  it  is  in  every 
respect  most  satisfactory."  Portraits  of  the  Chief  Justice  later  in 
life  are  given  in  subsequent  volumes  of  the  present  publication. 

OAK  HILL  HOME       -  -    Page  210 

The  second  engraving  in  the  present  volume  is  the  Oak  Hill  home 
of  the  Chief  Justice,  concerning  which  Mr.  Thomas  Marshall  Smith, 
in  a  letter  which  he  obligingly  wrote  to  the  Editor,  says.:  "The 
father  of  the  Chief  Justice  in  1765  moved  to  Fauquier  county,  and 
in  1773  purchased  'Oak  Hill,'  or  'The  Oaks.'  Here  he  built  a  frame 
house,  which  is  the  wing  on  the  right  in  the  picture.  The  main 
building  was  added  in  1821,  by  Thomas  Marshall,  the  eldest  son  of 


John  Marshall  Memorial.  vi 

the  Chief  Justice.  It  was  at  Oak  Hill  that  the  future  Chief  Justice 
spent  most  of  his  boyhood,  and  in  it  commenced  at  eighteen  the 
study  of  the  law  from  the  first  completed  edition  of  Blackstone,  then 
recently  published,  and  which  tradition  says  was  imported  by  the 
father  for  the  son's  use.  It  was  from  Oak  Hill  that  the  son  walked 
twenty  miles  to  drill  the  Company  his  father  had  organized,  after 
wards  known  as  the  '  Culpeper  Minute  Men.'  The  house  still  exists 
as  shown  in  the  picture.  The  estate  has  changed  hands  several 
times  since  it  was  owned  by  the  family;  the  present  owner  keeps 
the  same  in  good  repair." 

The  present  engraving  is  from  an  oil  painting  which  Mr.  Thomas 
Marshall  Smith  says  ''gives  a  better  idea  of  the  country  home  of 
the  Chief  Justice  than  anything  we  know  of.  My  mother,  who  was 
born  at  Oak  Hill  and  spent  most  of  her  life  there,  says  the  picture 
hung  over  the  mantel-piece  in  the  parlor  many  years,  and  that  the 
engraving  recalls  the  old  place  very  vividly.  The  house  at  German- 
town,  in  Fauquier  county,  where  the  Chief  Justice  was  born,  was 
destroyed  a  number  of  years  ago."  A  plate  of  the  Richmond  home 
of  the  Chief  Justice  illustrates  a  subsequent  volume  of  the  present 
work. 

FACSIMILE  OF  LETTER  OF  THE  CHIEF  JUSTICE 
TO  RICHARD  PETERS  -      -     Page  £?&  I 

We  give  in  facsimile  an  interesting  original  letter  written  by 
Marshall  when  he  was  Secretary  of  State,  October  30,  1800,  that  is 
the  October  preceding  his  appointment  as  Chief  Justice,  courteously 
furnished  to  the  editor  by  Mr.  Edward  C.  Perkins  of  the  New  York 
Bar,  who  stated  that  the  original  was  given  to  his  grandmother, 
Mrs.  M.  A.  D.  Bruen,  by  Mrs.  John  Field,  of  Philadelphia,  who  was  a 
descendant  of  Judge  Peters,  to  whom  the  letter  was  addressed.  The 
letter  is  intrinsically  interesting,  is  characteristic  of  Marshall,  and 
contains  a  touch  of  humor  where  he  says:  "I  pray  devoutly  (which 
is  no  very  common  practice  with  me)  that  the  future  administration 
[Mr.  Jefferson's]  may  do  as  little  harm  as  the  present  and  the  past." 


INTRODUCTION. 


Section  L  Plan,  scope  and  purpose  of  the  present  work. 

II.  The  origin  and  first  commemoration  of  Marshall  Day. 
Order  of  publication  of  the  proceedings  and  ad 
dresses. 

III.  Marshall's  influence  in  establishing  the  principle  of 

nationality  in  the  Constitution. 

IV.  Final  ascendency  and  universal  acceptance  of  Mar 

shall's  principle  of  nationality. 

V.  Marshall's  influence  in  establishing  the  constitutional 
authority  and  functions  of  the  Supreme  Court,  and 
in  securing  for  it  public  respect  and  confidence. 
VL  The  salutary  operation  of  the  power  of  the  judiciary  as 
held  in  Marbury's  Case  to  declare  void  legislative  acts 
in  conflict  with  the  Constitution  demonstrated  by 
experience. 
VIL  No  part  of  Marshall's  opinion  in  Marbury's  Case  is  obiter 

or  extra-judicial. 

VIIL  Marshall's  rulings  on  the  Burr  trials  awarding  sub 
poenas  directed  to  President  Jefferson  reviewed  and 
approved. 
IX.  Marshall's  personal  life  and  character. 

I. 

My  relation  as  Editor  of  these  volumes  came  about  in 
almost  an  accidental  way.  A  distinguished  Justice  of 
the  Supreme  Court  of  the  United  States 1  concluded  a 
letter  acknowledging  a  copy  of  my  Albany  Address  by 

1  Mr.  Justice  Shiras. 


John  Marshall  Memorial  viii 

saying:  "  A  collection  of  the  addresses  delivered  on  John 
Marshall  Day,  if  put  in  a  permanent  form,  would,  I  think, 
be  very  interesting  as  showing  a  consensus  of  opinion 
concerning  Marshall  on  the  part  of  eminent  lawyers  in 
all  parts  of  the  country."  Just  after  the  receipt  of  the  let 
ter  it  chanced  that  I  had  occasion  to  write  to  the  publishers 
of  this  work,  and  I  inclosed  the  letter  of  the  learned  Justice 
and  asked  them  to  undertake  the  publication,  even  though 
the  enterprise  might  prove  unprofitable.  With  character 
istic  liberality  they  acceded  to  the  proposal,  annexing  the 
single  condition  that  I  should  collect,  arrange  and  edit 
the  addresses,  with  a  suitable  Introduction.  Having  sug 
gested  that  they  should  make  any  pecuniary  sacrifice 
which  the  publication  might  involve,  I  felt  estopped  to 
make  the  objection,  however  well  founded, of  want  of  time. 
And  so  I  consented.  Only  those  who  are  familiar  with 
such  work  can  appreciate  how  much  time  it  has  required ; 
but  it  has  been  for  me  a  labor  of  love,  carrying  with  it 
its  own  exceeding  great  reward, —  perhaps  the  last  in 
stalment,  small  enough  at  the  best  —  the  widow's  mite  — 
that  I  shall  be  able  to  pay  on  the  inextinguishable  debt 
that  every  lawyer  owes  to  his  profession,  the  basis  of  the 
obligation  being  that  he  is  a  member  of  a  perpetual  body 
of  men,  and  therefore  an  inheritor  of  all  the  accumulated 
treasures  of  the  past. 

Through  correspondence  with  the  various  bar  associa 
tions  and  institutions  of  learning  it  appeared  that  the  day 


ix  Introduction. 

was  publicly  commemorated,  not  only  at  the  National 
Capital,  but  in  thirty-seven  States  and  Territories  of  the 
Union.  In  the  few  States  in  which  the  day  was  not 
formally  observed,  the  omission  was  due  to  accidental 
causes.  In  several  of  the  States  there  were  celebra 
tions  at  different  places.  It  was  found  that  more  than 
fifty  orations,  not  counting  minor  ones,  were  given  by 
leaders  of  the  bar,  by  members  of  the  highest  Federal 
and  State  courts,  and  by  eminent  statesmen  and  scholars. 
"  Such  honors  Ilion  to  her  hero  paid."  How  to  deal  with 
such  a  mass  of  material  was  the  cause  of  no  little  em 
barrassment.  Should  I  undertake  the  invidious  office  of 
selecting  a  dozen  or  twenty,  to  the  end  that  their  publica 
tion  might  be  comprised  in  a  single  volume?  Such  a 
curtailment  of  this  truly  national  event,  the  most  remark 
able  voluntary,  spontaneous  tribute  in  its  extent  and 
character,  which,  in  the  history  of  our  profession,  in  any 
country  or  in  any  age,  was  ever  paid  to  the  name  and 
memory  of  a  judge  long  since  deceased  — was  not  for  a 
moment  to  be  thought  of  if  it  was  possible  to  avoid  it. 
Moreover,  an  examination  of  the  addresses  showed  such 
a  general  high  order  of  excellence  and  varied  ability  that 
to  make  a  just  selection  would  be  an  ungracious  and  diffi 
cult  if  not  impossible  task. 

The  publishers  concurred  in  the  view  that  the  publica 
tion  ought  to  reflect  the  unique  occasion  in  all  its  ampli 
tude.  And  accordingly  what  was  at  first  thought  could 


John  Marshall  Memorial  x 

be  compassed  in  one  or  at  most  two  volumes  has  taken 
three;  but  we  have  the  satisfaction  of  presenting  a 
record  of  the  great  event,  substantially  complete  and 
undismembered. 

The  principal  official  addresses  have  as  a  rule  and 
wherever  practicable  been  given  in  full,  and  nothing 
has  been  omitted  from  any  except  repetitions  of  bio 
graphical  matter,  of  extracts  from  accessible  volumes, 
and  of  details  not  connected  with  Marshall's  judicial 
services,  for  it  was  Marshall's  judicial  services  which 
chiefly  gave  to  the  day  its  inspiration  and  essential 
character.  One  other  word  in  explanation,  and,  if  need 
be,  in  vindication  of  the  plan  adopted:  While  the  same 
great  judgments  of  Marshall  construing  the  Constitu 
tion,  delimiting  its  boundaries  and  settling  its  most 
vital  and  fundamental  principles,  have  necessarily  passed 
under  the  review  of  the  speakers,  yet  these  decisions  are 
discussed  from  such  different  points  of  view,  or  with 
such  different  objects,  and  in  such  different  styles,  that 
there  is  an  unfailing  variety  which  the  interested  reader 
will  be  sure  to  perceive  and  enjoy.  This  is  so  marked 
that  it  may  with  truth  be  said  that  the  addresses,  though 
running  on  the  same  general  lines,  could  have  been  de 
livered  to  the  same  audience,  and  it  would  have  found  in 
each  address  something  new  in  thought,  expression,  sug 
gestion  or  purpose. 


xi  Introduction. 

II. 

The  history  of  the  movement  leading  to  the  institution 
and  the  first  centennial  commemoration  of  Marshall  Day 
appears  so  fully  in  these  volumes  as  to  render  extended 
reference  to  it  unnecessary.  The  suggestion  by  Mr. 
Adolph  Moses  of  the  Chicago  Bar  of  such  a  day  struck  a 
sympathetic  chord  which  vibrated  throughout  the  land. 
It  was  indorsed  by  the  Bar  Association  of  Illinois,  and 
met  with  the  hearty  and  weighty  sanction  of  the  Ameri 
can  Bar  Association.  This  body  assumed  the  charge  and 
direction  of  the  celebration,  and  thus  assured  its  success 
on  a  national  scale.  To  this  end  it  appointed  a  Commit 
tee  composed  of  one  member  from  each  State  and  Terri 
tory  and  from  the  District  of  Columbia.  In  suitable  and 
earnest  words  this  Committee  publicly  addressed  the 
Bench  and  Bar  of  the  United  States,  setting  forth  the 
reasons  why  the  whole  country  should  commemorate  the 
centennial  of  the  installation  of  the  Chief  Justice,  and 
urging  upon  the  State  and  National  Courts,  the  State, 
City  and  other  Bar  Associations,  the  Universities  and  in 
stitutions  of  learning  and  public  bodies  throughout  the 
land  the  due  observance  of  the  day.1  At  the  Com 
mittee's  instance  President  McKinley  recommended  to 
Congress  the  propriety  of  a  fitting  celebration  of  the 
occasion  on  the  part  of  all  the  departments  of  the  gov- 

lfThe  text  of  this  excellent  address  and  also  the  names  of  the 
members  of  the  National  Committee  are  given  in  the  Appendix, 
b 


John  Marshall  Memorial  xii 

ernment.  Congress  approved;  and  in  the  hall  of  the 
House  of  Representatives  impressive  national  ceremonies 
were  held,  the  account  of  which  is  given  the  first  place 
in  these  volumes.  The  next  place  is  appropriately  as 
signed  to  the  proceedings  in  the  Commonwealth  of  Vir 
ginia,  Marshall's  native  State.  The  other  observances 
are  arranged  in  the  order  of  the  nine  Federal  Judicial 
Circuits,  commencing  with  the  State  of  Maine  in  the  First 
Circuit. 

In  addition  to  the  addresses  on  Marshall  Day,  the 
eulogies  of  Mr.  Binney  and  Justice  Story  delivered  in 
1835  soon  after  the  death  of  the  Chief  Justice;  the  ad 
dress  of  Mr.  Fhelps  before  the  American  Bar  Association 
at  its  annual  meeting  in  1879 ;  of  Chief  Justice  Waite  and 
the  oration  of  Mr.  Eawle  in  1884  at  the  unveiling  of  the 
statue  of  Marshall  in  the  Capitol  grounds  in  Washing 
ton,  have  been  included.  These  productions  are  famous, 
have  long  been  justly  regarded  as  classic,  and  are  some 
what  rare  or  inaccessible.  They  round  out  and  complete 
the  plan  and  purpose,  and  give  a  distinctly  added  value 
to  the  present  publication. 

III. 

The  influence  of  the  universal  celebration  of  the  day 
will  not  cease  with  the  occasion,  but  will  be  wide  and 
lasting.  It  has  taught  the  people  at  large  what  before 
was  chiefly  known  to  lawyers  and  special  students  of  our 


xiii  Introduction. 

history,  and  to  these  often  imperfectly,  that  to  Marshall 
more  than  to  any  other  person  is  due  the  establishment 
of  the  principle  of  nationality  in  the  Constitution  of  our 
country.  This  principle  has  profoundly  affected  our  na 
tional  life.  It  has  determined  our  destiny.  It  has  made 
us  a  Nation  in  fact  as  well  as  in  name,  a  power  and  not 
a  mere  painted  semblance.  It  held  the  Nation  intact 
against  the  heresies  of  nullification  and  secession.  It  re 
ceived  its  complete,  final  and  now  unquestioned  triumph 
with  the  overthrow  of  the  Confederacy,  whose  forces,  as 
has  been  said,  surrendered  not  more  truly  to  Grant  in 
the  field  than  to  Marshall's  great  judgments  expounding 
the  Constitution.  Marshall's  career  has  been  revealed  in 
a  wider  light  to  the  whole  country;  and  the  value  and  in 
fluence  of  his  work  are  felt  more  distinctly,  more  impres 
sively  than  ever  before. 

Our  reverence  and  gratitude  are  consciously  enhanced 
when  it  is  seen  that  his  decisions  as  to  the  scope  of  the 
national  authority  were  opposed  by  powerful  parties  and 
interests.  Many  lawyers  and  statesmen  differed  from 
Marshall  at  the  time.  Moreover,  the  questions  were 
novel  and  so  closely  balanced  that  they  not  only  might 
have  been  determined  the  other  way,  but  it  is  certain 
that  they  would  have  been  determined  the  other  way  if 
their  decision  had  fallen  to  judges  of  the  strict  construc 
tion  school.  Next  to  Marshall's  judicial  genius  the  most 
conspicuous  feature  in  his  character  is  his  placid  and  un 
daunted  courage.  No  weak  judge,  no  ordinar}r  judge, 


John  Marshall  Memorial.  xiv 

would  have  faced  unmoved,  as  Marshall  did,  the  active 
hostilities  which  he  had  to  encounter.  He  knew  no  fear. 
He  heeded  no  clamor.  He  kept  on  in  the  orbit  of  his  duty, 
like  the  planets  in  their  courses,  silent  and  irresistible. 

At  the  date  of  Marshall's  appointment  the  Republic 
was  "  in  the  gristle  "  of  its  infancy  and  not  yet  hardened 
into  bone  of  manhood;  it  was  yet  "  mewing  her  mighty 
youth."  He  found  the  National  Constitution  weak,  al 
most  tottering;  he  supported  it  by  his  adamantine  judg 
ments,  and  he  carried  it  with  his  strength  and  courage 
through  the  dangers  that  encompassed  it. 

The  flexibility  of  the  Constitution,  arising  out  of  the 
general  language  in  which  its  powers  and  prohibitions 
are  expressed,  was  the  means  of  perfecting  and  probably 
of  saving  it.  Marshall's  long  judicial  reign,  contemporary 
with  the  official  terms  of  four  Chief  Justices  of  England, 
four  Lord  Chancellors,  and  the  administration  of  six 
American  Presidents,  made  possible  the  gradual  develop 
ment  of  the  Constitution  under  his  master  mind  by  judi 
cial  decisions,  point  by  point,  bearing  in  this  respect  no 
slight  analogy  to  the  development  of  the  common  law, 
and  giving  as  a  result  a  system  far  wiser  and  better  (be 
cause  based  upon  experience  and  necessity)  than  any  sys 
tem  which  it  would  have  been  possible  for  the  mind  of 
man  to  have  formulated  in  advance.  And  thus  it  has 
happened  that  Marshall's  imprint  is  imperishably  left, 
upon  all  of  the  great  and  essential  features  of  the  Consti 
tution. 


xv  Introduction. 

IV. 

The  proceedings  here  published  exhibit  in  a  striking 
light  the  unanimity  of  opinion  in  every  part  of  the  coun 
try  (without  a  note  of  dissent  in  any  quarter  or  from  any 
party)  as  to  the  controlling  influence  and  effect  of  Mar 
shall's  decisions  in  moulding  the  Constitution  into  the 
form,  substantially,  in  which,  aside  from  the  recent 
amendments,  we  have  it  to-day.  It  is  true  that  after  the 
accession  of  his  able  successor  and  other  changes  in 
the  personnel  of  the  bench,  there  was  in  some  respects, 
not  fundamental,  a  slight  reaction  against  the  extreme  j/'' 
centripetal  tendency  of  Marshall's  doctrines  —  a  slight 
recession  from  Marshall's  high-water  line  of  national 
ity;  but  that  was  all.  None  of  his  great  Constitutional 
decisions  as  to  the  rightful  authority  of  the  National 
Government  was  overruled ;  and  the  powers,  limitations 
and  prohibitions  of  the  Constitution,  as  Marshall's  judg 
ments  defined  and  construed  them,  remained,  and  they 
remain  to  the  present  day,  not  only  untouched,  but  no 
longer  questioned. 

The  principle  of  nationality  has  not  yet,  as  I  think, 
reached  its  limit  or  culmination ;  and  1  venture  to  predict 
that  by  natural  evolution,  by  judicial  development  and 
constitutional  amendment  arising  out  of  our  experience, 
necessities  and  changing  conditions,  the  next  Marshall 
Day  centennial  will  witness  the  powers  of  the  National 
Government  extended  to  objects  and  purposes  not  now 
within  its  scope, —  at  least,  its  recognized  scope. 


John  Marshall  Memorial  xvi 

To  the  thoughtful  reader,  amongst  the  most  interest 
ing  features  of  the  celebration  is  the  estimation  in  which 
Marshall  is  held  in  the  parts  of  the  Union  that  clung 
longest  to  the  doctrine  of  States'  Rights  and  strict  con 
struction,  and  that  made  these  the  legal  justification 
of  the  Civil  War.  The  appreciation  of  Marshall  is  no 
where  more  hearty  and  unreserved  than  in  the  addresses 
delivered  in  those  States  on  Marshall  Day.  This  cele 
bration  also  shows  that  the  results  of  the  Civil  War  are 
everywhere  loyally  accepted,  and  that  all  sections  and 
all  parties  rejoice  in  a  re-united  country;  and  therefore 
we  are  not  sorry  to  hear,  in  one  or  two  of  the  addresses, 
a  soldier  or  a  judge  of  the  Confederacy  heave  a  natural 
sigh  or  utter  a  tender  lament  over  the  "  Lost  Cause." 

Marshall  in  a  famous  opinion  earnestly  declared  that 
the  union  of  the  States  under  the  Constitution  was  in 
tended  by  its  framers  to  be  perpetual.  And  surely  the 
spontaneous  and  universal  honors  which  were  rendered 
to  Marshall  throughout  the  entire  country  more  than 
sixty-five  years  after  he  had  closed  his  earthly  career 
afford  the  strongest  assurance  possible  that  the  Republic, 
enthroned  in  the  heart  and  affection  of  its  people,  is  des 
tined  to  endure  throughout  a  future  as  boundless  as  our 
hopes. 

Y. 

>In  unfolding  by  successive  judgments  the  powers  of 
the  General  Government  under  the  Constitution,  Marshall 
was  thereby  rendering  also  a  closely  related  and  scarcely 


xvii  Introduction. 

less  important  service.  This  was  the  establishing  of  the 
importance  and  scope  of  the  constitutional  authority  and 
functions  of  the  Supreme  Court,  as  the  ordained  tribunal 
peacefully  to  settle  disputes  concerning  the  respective 
powers  and  pretensions  of  the  States  and  the  Nation,  and 
to  determine  finally,  whenever  presented  for  judicial  de 
cision,  all  controversies  and  cases  arising  under  the  Con 
stitution  and  laws  of  the  United  States.  How  lowly  in 
1801  was  the  estate  of  the  court  in  public  and  professional 
estimation  is  most  fitly  portrayed  in  many  of  the  Marshall 
Day  addresses.  It  is  sufficient  here  to  refer  to  the  gloomy 
picture  drawn  by  Jay  in  his  letter  declining  the  Chief 
Justiceship  which  Marshall  shortly  afterwards  accepted. 
The  court  had  failed  in  the  past,  Jay  declares,  to  acquire 
the  requisite  "  public  confidence  and  respect.'Nffhat  was 
not  all.  The  future  appeared  equally  dark ;  for  he  says, 
"  when  I  left  the  bench  I  was  perfectly  convinced  that 
under  a  system  so  defective  the  court  could  not  obtain 
the  energy,  weight  and  dignity  which  was  essential  to 
its  affording  due  support  to  the  National  Government." 

The  court  in  1801  was  in  a  hostile  clime.  It  was  almost 
without  friends.  Hardly  any  so  poor  as  to  do  it  rever 
ence.  The  Chief  Justiceship  went  begging.  No  great 
lawyer  wanted  it.  Marshall  successively  recommended 
two  other  persons,  and  sought  not  the  place  for  himself. 
But  from  the  time  he  took  the  helm  of  the  court  the  un 
steady  vessel  felt  his  firm  hand  in  its  every  part  and  every 


John  Marshall  Memorial.  xviii 

movement.  With  equal  skill  and  courage,  and  with  faith 
sublime  in  himself,  he  safely  directed  the  constitutional 
course  of  the  infant  Kepublic  for  a  third  of  a  century,  in 
storm  and  stress,  in  darkness  and  dangers,  over  uncharted 
and  unvoyaged  seas,  towards  unseen  lands  and  an  un 
known  destiny.  "Before  him  lay  a  vast,  untraveled 
gloom;  behind,  a  wake  of  splendor." 

And  what  a  change  Marshall  wrought !  The  popular 
notions  a  century  ago  were  deeply  tinctured  with  the  doc 
trines  and  theories  engendered  by  the  French  Revolu 
tion  —  the  supreme  and  uncontrollable  right  of  the  people 
to  govern.  Marbury's  Case  opened  a  new  chapter  in  the 
history  of  constitutional  governments.  That  decision 
said  to  Congress,  that  is  to  the  people's  department,  to 
the  law-making  power,  "  if  you  enact  a  law  in  conflict 
with  the  Constitution  it  is  utterly  void,  and  the  court, 
although  only  a  co-ordinate  department,  has  the  right 
under  the  Constitution  so  to  decide,  and  such  decision 
is  authoritative  and  final,  binding  throughout  the  land 
upon  States  and  people."  But  that  decision  also  said  to 
the  head  of  one  of  the  executive  departments,  acting 
under  the  immediate  orders  of  the  President,  "  You, 
too,  are  subject  to  the  Constitution  and  are  amenable  to 
judicial  authority  whenever  you  deny  or  violate  the  legal 
rights  of  any  individual,  for  be  it  known  this  is  a  Govern 
ment  of  laws,  and  not  of  men."  Yerily  a  new  charter  of 
individual  rights  and  liberties  was  here  proclaimed. 


Introduction. 

The  decision  was  not  relished.  It  was  received  with 
discontent.  It  alarmed  the  party  in  power.  Jealousy 
of  the  Supreme  Court  on  the  part  of  the  States  had  ex 
isted  from  the  first,  and  now  hostility  to  it  was  openly 
manifested.  Intimidation  by  impeachment  was  resorted 
to.  Attempts  at  different  times  were  made  in  Congress 
looking  to  the  amendment  of  the  Constitution  so  as  to 
make  the  judges  removable  on  the  address  of  two-thirds 
of  both  Houses,  to  change  the  judicial  tenure  from  life 
to  a  fixed  term  of  years,  and  to  alter  the  Judiciary  Act 
so  as  to  deprive  the  Supreme  Court  of  the  power  to  ex 
amine  or  revise  judgments  of  the  State  courts  on  Federal 
questions,  no  matter  how  conflicting  or  obviously  erro 
neous  such  judgments  might  be.  What  kept  the  court 
afloat  in  this  time  of  peril  ?  More  than  anything  else  it 
was  Marshall's  judgments,  and,  above  all,  the  plain,  un 
answerable,  luminous  reasoning  by  which  they  were 
accompanied  and  on  which  they  rested. 

The  growth  of  the  court  in  the  public  confidence  and 
respect  during  the  century  intervening  between  Mar 
shall's  appointment  and  its  centennial  observances  was 
signalized  in  a  most  impressive  manner  by  one  of  those 
coincidences  that  often  so  powerfully  affect  the  public 
mind.  On  Marshall  Day,  1901,  the  Insular  Cases,  grow 
ing  out  of  our  acquisition  of  foreign  possessions  and  in 
volving  their  Constitutional  status  and  the  power  of  Con 
gress  and  of  the  Executive  in  respect  of  them,  had  been 


John  Marshall  Memorial.  xx 

argued  in  the  Supreme  Court,  but  were  still  undeter 
mined.  The  noticeable  point  is  that  not  only  was  there 
no  jealousy  of  the  jurisdiction  and  power  of  the  court  on 
the  part  of  the  President,  or  Congress,  or  the  people;  but, 
on  the  contrary,  these  were  all  calmly  awaiting  the  judg 
ment  of  the  court,  to  be  accepted,  of  course,  whatever  it 
might  be,  as  authoritative,  and  to  be  acted  on  accord 
ingly  by  the  Government  and  the  people.  This  extraor 
dinary  spectacle  of  an  expectant  Nation  waiting  for  the 
i  court's  deliverance  shows  how  fine  and  true,  fine  because 
*  true,  is  Mr.  Bryce's  statement  in  that  great  work  which 
displays  in  its  every  part  such  a  deep  and  clear  insight 
into  our  political  and  legal  institutions  and  their  workings : 
"  No  other  man  did  half  so  much  as  Marshall,  either  to 
develop  the  Constitution  by  expounding  it,  or  to  secure 
for  the  judiciary  its  rightful  place  in  the  Government  as 
the  living  voice  of  the  Constitution."  And  among  the 
chief  lessons  of  Marshall  Day  is  the  revelation  of  the 
public  as  well  as  the  professional  consciousness  that  the 
Supreme  Court  is,  verily,  the  living  voice  of  the  Constitu 
tion;  and  that  it  is  such  is  due  pre-eminently  to  Chief 
Justice  Marshall. 

YL 

It  was  inevitable  that  on  Marshall  Day  renewed  at 
tention  should  be  called  to  the  original  and  distinctively 
American  feature  in  our  governmental  polity  which  Jef 
ferson  called  the  "  judicial  veto."  The  definite  establish- 


xxi  Introduction. 

.  merit  of  that  principle  may  truly  be  said  to  date  from  Mar 
shall's  decision  in  Marbury  against  Madison.  The  nature 
and  effects  of  this  doctrine  are  discussed  in  a  great  vari 
ety  of  aspects  in  the  addresses  here  published.  That  its 
workings  with  us  have  been  satisfactory  is  demonstra 
ble  from  our  experience,  and,  indeed,  is  now  nowhere 
controverted.  Since  the  time  when  that  principle  was 
settled  beyond  question  by  the  repeated  decisions  of 
the  State  and  Federal  courts,  all  of  the  States  have 
framed  new  Constitutions,  many  of  them  more  than  once, 
and  have  amended  their  Constitutions  as  often  as  they 
thought  best,  new  States  have  been  admitted  into  the 
Union;  and  yet  in  none  of  the  Constitutions,  even  the 
latest,  has  this  power  of  the  courts  been  denied  or  lim 
ited.  The  doctrine  itself  was  established  against  earnest 
opposition ;  but  opposition  has  long  since  disappeared.  The 
only  existing  difference  of  opinion  amongst  us  is  that 
some  persons  think  the  courts  exercise  too  freely  the 
grave  power  to  hold  legislative  acts  unconstitutional,  and 
others  that  they  exercise  this  salutary  power  too  sparingly. 
The  remarkable  fact  to  be  noted  is  that  there  is  an  abso 
lute  agreement  of  opinion  as  to  the  soundness  and  utility 
of  the  principle  itself.  It  is  still  more  remarkable  that 
notwithstanding  our  favorable  experience  with  the  prac 
tical  operation  of  the  "judicial  veto"  on  such  an  ex 
tended  scale,  National  and  State,  for  a  hundred  years,  its 
importance  as  a  factor  in  the  growth  and  development  of 


John  Marshall  Memorial  xxii 

Constitutional  Government  seems  to  attract  no  consider 
able  attention  elsewhere ;  and  in  those  countries  having 
written  Constitutions,  the  Australian  Confederation  ex- 
cepted,  the  power  is  expressly  reserved  to  the  Legisla 
ture  to  decide  finally  upon  the  constitutionality  of  its 
enactments,  and  such  a  power  is  expressly  denied  to  the 
courts. 

Mr.  Bryce,  in  a  letter  to  the  editor  referring  to  Mar 
shall  Day,  said :  "  You  in  the  United  States  seem  to  be 
far  more  alive  to  the  services  rendered  by  your  great 
legal  and  Constitutional  luminaries  than  people  are  in 
England,  where,  I  am  sorry  to  say,  not  very  many  mem 
bers  of  our  Bar  or  Bench  show  much  interest  in  the  his 
tory  of  the  development  of  the  Constitution  on  its  legal 
side ;  and  one  cannot  doubt  that  this  attention  so  given  in 
America  must  have  happy  results  on  the  ideals  which 
ought  to  be  cherished  by  the  legal  profession." 

The  judicial  veto  is  the  great  original  contribution  of 
America  to  the  science  of  Government.  Whoever  shall 
attentively  consider  its  history  from  its  immediate  germ 
in  the  Colonial  Charters  and  Colonial  experience  to  its 
final  establishment  by  the  judgment  in  Marbury's  Case 
will  not  fail  to  observe  four  striking  facts,  which  I  must 
content  myself  with  stating  without  elaboration: 

1.  No  express  power  is  given  in  the  Constitution  to 
the  Federal  Judiciary  in  general  or  to  the  Supreme  Court 
in  particular,  to  declare  void  either  acts  of  State  Legisla- 


xxiii  Introduction. 

tures  or  acts  of  Congress  because  they  are  in  conflict 
with  the  Federal  Constitution,  or  for  any  other  reason. 
On  this  subject  the  Constitution  is  utterly  silent. 

2.  State  jealousies  of  Federal  power  were  so  strong 
that  the  States  would  probably  have  defeated  the  adop 
tion  of  the  Constitution  if  it  had  contained  such  an  ex 
press  provision. 

3.  So  far  from  such  power  being  conferred  in  terms 
upon  the  Federal  Judiciary  or  the  Supreme  Court,  the 
Constitution  limits  the  function  of  the  Federal  courts  to 
the  usual  and  narrow  one  of  deciding  litigated  cases. 
The  courts  can  originate  nothing,  cannot  call  their  own 
powers  into  action,  and  it  depends,  therefore,  upon  fortui 
tous  circumstances,  when,  if  ever,  any  particular  ques 
tion  will  arise,  or,  if  it  arises,  whether  those  affected  by 
it  will  resort  to  the  judicial  tribunals  for  relief  or  re 
dress. 

4.  But  herein  consists,  as  it  has  turned  out,  the  con 
summate  wisdom  of  the  Constitution.  Whether  in  this 
its  framers  builded  better  than  they  knew,  who  can  tell? 
But  instead  of  erecting  a  separate  tribunal  whose  dis 
tinct  office  is  declared  to  be  to  guard  the  Constitu 
tion  and  to  prevent  the  usurpation  or  exercise  of  un 
authorized  powers  by  the  Executive  or  Congress,  and 
to  settle  the  respective  powers  of  the  States  and  the 
General  Government,  the  Constitution  left  this  authority 
in  the  courts,  to  result  as  an  incident  solely  from  the 


John  Marshall  Memorial.  xxiv 

exercise  of  the  judicial  function  of  determining  litigated 
cases,  namely  cases  arising  under  the  Constitution,  laws 
and  treaties  of  the  United  States  as  provided  in  the  Ju 
diciary  Article  of  the  Constitution.  Instead  of  the  puerile 
device  of  placing  the  Constitution  "under  the  guarantee 
of  all  the  virtues,"  as  France  did,  we  in  our  Constitution 
gave  the  courts,  in  the  indirect  manner  above  pointed 
out,  the  power  and  made  it  their  duty,  but  only  at  the  in 
stance  of  those  adversely  affected,  to  refuse  to  carry  un 
constitutional  acts  or  legislation  into  effect.  But  since 
all  executive  action  must  be  embodied  in  orders,  and 
all  legislative  action  in  the  form  of  written  statutes,  the 
door  is  at  all  times  open  for  redress  to  all  who  are 
injured  by  unconstitutional  acts  or  enactments;  and  thus 
the  remedy,  although  indirect,  is  adequate  and  efficient. 
And  albeit  the  decision  of  the  Supreme  Court  only  re 
sults  in  form  in  a  judgment  in  the  case  of  A  v.  B,  yet 
the  effect  is  that  the  principles  of  such  judgment  practi 
cally  fix  the  meaning  of  the  Constitution,  for  the  strongest 
force  in  this  country  is  the  universal  sentiment  of  legality 
and  reverence  for  and  obedience  to  law  as  declared  by 
the  judicial  tribunals.  In  the  end  the  decisions  of  the 
Supreme  Court  are  submitted  to,  or,  as  has  occasionally 
happened,  the  Constitution  is  legally  amended  in  pur 
suance  of  provisions  in  that  behalf  therein  contained. 
And  thus  the  reign  of  law  in  this  country  is  everywhere 
supreme. 


xxv  Introduction. 

YIL 

The  addresses  in  these  volumes  disclose  the  striking 
fact  that  of  Marshall's  numerous  Constitutional  decisions 
only  two  are  now  seriously  criticised,  viz.,  certain  parts 
*  of  the  opinion  in  Marbury  against  Madison,  alleged  to  be 
obiter,  and  the  awarding  on  the  trial  of  Burr,  at  his  in 
stance,  of  a  subpoena  duces  tecum  directed  to  the  Presi 
dent  of  the  United  States.  As  the  questions  thus  raised 
belong  to  a  critical  estimate  of  Marshall's  judicial  char 
acter,  or  are  intrinsically  important  in  their  Constitutional 
aspects,  this  and  the  next  section  of  this  Introduction  will 
be  devoted  to  some  observations  concerning  them,  which 
the  non-professional  reader  may,  if  he  pleases,  omit,  but 
which  I  have  endeavored  to  state  so  that  they  may 
readily  be  understood  by  laymen. 

It  is  admitted  by  all  that  the  decision  of  the  court  in 
Marbury  against  Madison  that  an  act  of  Congress  in  con 
flict  with  the  Constitution  is  void  was  necessarily  involved 
in  the  cause;  and  therefore  this  point  was  legitimately 
presented  and  decided.  As  that  conclusion  when  applied 
to  the  case  in  hand  had  the  effect  to  deprive  the  court  of 
any  jurisdiction  to  issue  the  mandamus  whereby  Marbury 
sought  to  compel  Madison,  the  Secretary  of  State,  to  de 
liver  to  him  his  commission,  the  argument  of  Marshall's 
critics  is  that  the  court  having  in  the  end  decided  that  it 
was  without  jurisdiction  to  issue  this  particular  writ,  it 


John  Marshall  Memorial.  xxvi 

had  no  right  to  consider,  or  to  decide,  or  to  express  any 
opinion  whatever  upon  the  question  whether  Marbury 
had  a  legal  right  to  his  commission,  and,  if  so,  whether  a 
mandamus  to  the  head  of  one  of  the  executive  depart 
ments  was  a  proper  remedy  for  the  enforcement  of  the 
right. 

The  objection  is  not  without  weight,  and  deserves 
careful  consideration.  Where  the  precise  case  before  a 
court  is  beyond  its  jurisdiction  under  any  and  all  cir 
cumstances,  it  is  undoubtedly  true  that  when  the  court 
holds  it  is  without  jurisdiction  it  thereby  bars  itself  from 
discussing  or  deciding  what  would  be  the  rights  of  the 
parties  if  it  had  jurisdiction  to  hear  and  adjudge  the  cause. 

Those  who  maintain  that  no  part  of  Marshall's  opinion 
is  obiter,  insist  that  certain  special  facts  must  not  be  over 
looked.  One  is  that  the  case  relating,  as  it  did,  to  a  Fed 
eral  commission  and  a  Federal  office  was  within  the 
lawful  and  general  cognizance  of  the  Supreme  Court  as- 
a  case  arising  under  the  Constitution  and  laws  of  the 
United  States.  Another  and  more  important  considera 
tion  is  that  it  is  a  settled  and  unquestioned  doctrine 
founded  upon  the  most  solid  reasons  that  no  court  is 
justified  in  exercising  the  high  power  of  holding  an  act 
of  the  legislative  department  to  be  void,  unless  the  ne 
cessity  is  absolutely  imperative ;  that  is  to  say,  unless  there- 
is  no  other  ground  on  which  a  decision  of  the  cause  can 
be  placed. 


xxvii  Introduction. 

In  Marbury's  Case  two  opposing  principles  came  into 
direct  conflict.  The  one  side  insists  that  the  court  could 
rightfully  decide  only  the  question  of  jurisdiction,  al 
though  such  decision  could  not  be  reached  except  by 
holding,  and  that  too  for  the  first  time  under  the  Fed 
eral  Constitution,  that  an  act  of  Congress  contravened 
the  Constitution  and  was  therefore  utterly  void.  The 
other  side  insists  that  the  court  was  not  justified  in  hold 
ing  an  act  of  Congress  to  be  unconstitutional  if  any  other 
ground  of  decision  existed,  and  that  it  was  the  bounden 
duty  of  the  court  to  see,  as  it  did,  whether  any  other  such 
ground  did  exist.  Marshall's  views  of  judicial  duty  on 
this  point  were  always  very  pronounced.  In  after  years 
he  thus  expressed  them :  "  No  questions  can  be  brought 
before  a  judicial  tribunal  of  greater  delicacy  than  those 
which  involve  the  constitutionality  of  legislative  acts." 
And  this  was  the  test  (and  it  is  the  true  test,  everywhere 
admitted  to  be  such)  which  he  propounded,  namely:  "If 
they  "  (questions  of  the  constitutionality  of  legislative 
acts)  "become  indispensably  necessary  to  the  case,  the 
court  must  meet  and  decide  them ;  but  if  the  case  may  be 
determined  on  other  grounds,  a  just  respect  for  the  legisla 
ture  requires  that  the  obligation  of  its  laws  should  not 
be  unnecessarily  and  wantonly  assailed." 

Jefferson's  emphatic  contention  was  that  Marbury's 
commission  was  like  a  deed  or  other  legal  instrument,  and 

could  have  no  validity  or  effect  until  delivery,  and  hence 
c 


John  Marshall  Memorial.  xxviii 

Marbury  had  no  legal  right  to  his  undelivered  commission. 
This  was  certainly  a  plausible,  and  who  could  say  that 
it  was  not  also  a  well  founded,  objection  until  it  was  ex 
amined  and  decided.  If,  therefore,  Marshall  had  in  his 
opinion  silently  ignored  the  point,  and  proceeded  at  once 
to  decide  the  question  whether  the  act  of  Congress  un 
dertaking  to  give  the  Supreme  Court  original  power  to 
issue  a  mandamus  was  unconstitutional,  and  had  so  de 
cided,  and  had  decided  nothing  else,  the  criticism  would 
instantly  have  been  made  with  great  force:  "Marbury's 
ground  of  complaint  was  plainly  destitute  of  foundation ; 
he  had  no  legal  right;  if  the  court  had  examined  this 
question  it  would  have  been  compelled  so  to  decide ;  but 
instead  of  doing  so,  it  ignored  any  consideration  of  the 
fundamental  basis  of  the  plaintiff's  claim  and  committed 
the  serious  fault  of  unnecessarily  deciding  an  act  of  Con 
gress  to  be  unconstitutional." 

The  court  was  justified,  therefore,  in  the  course  it 
pursued ;  viz.,  first,  to  determine  whether  Marbury  had 
a  legal  right  to  his  commission;  if  so,  second,  whether 
mandamus  to  the  defendant  was  a  rightful  remedy.  If 
either  of  these  questions  was  determined  adversely  to 
Marbury  that  would  end  the  case,  and  there  would  be 
no  occasion  to  consider  the  far  graver  and  more  diffi 
cult  question  whether  the  act  of  Congress  was  uncon 
stitutional,  and,  if  so,  to  determine  the  momentous  and 
undecided  question,  whether  the  court  had  the  power 


/ 


xxix  Introduction. 

to  declare  it  to  be  void.  But  since  the  court  reached 
the  conclusion  that  Marbury's  legal  right  was  perfect 
without  a  delivery  of  his  commission,  and  that  man 
damus  was  the  proper  remedy  to  compel  a  delivery  (a 
conclusion,  by  the  way,  adjudged  by  the  Supreme  Court 
eighty  years  afterwards  in  Schurz's  Case  to  be  correct), 
it  was  necessarily  obliged  to  proceed  to  consider  and  de 
cide  whether  the  act  of  Congress  which  was  in  conflict 
with  the  Constitution  was  void,  and,  if  so,  whether  it  was 
the  duty  of  the  court  so  to  declare  and  to  refuse  to  give 
effect  to  it. 

/  No  hard-and-fast  rule  can,  I  think,  be  laid  down  for 
judges  as  to  the  grounds  on  which  the  decision  of  a  cause 
should  be  placed.  Marshall  had  occasion  to  discuss  this 
subject  in  his  charge  to  the  jury  in  Burr's  Case.  The  de 
cision  of  the  Supreme  Court  in  the  prior  case  of  Bollman 
and  S  wartwout  in  respect  to  treason  was  earnestly  claimed 
by  counsel  to  be  "  contrary  to  law  and  not  obligatory 
because  it  was  extrajudicial  and  was  delivered  on  a  point 
not  argued."  Eeferring  to  this  contention,  Marshall 
says:  "It  is  true  that  in  that  case,  after  forming  the 
opinion  that  no  treason  could  be  committed  because  no 
treasonable  assemblage  had  taken  place,  the  Court  might 
have  dispensed  with  proceeding  further  in  the  doctrines 
of  treason.  But  it  is  to  be  remembered  that  the  judges 
might  act  separately,  and  perhaps  at  the  same  time,  on 


John  Marshall  Memorial.  xxx 

the  various  prosecutions  which  might  be  instituted,  and 
that  no  appeal  lay  from  their  decisions.  Opposite  judg 
ments  on  the  point  would  have  presented  a  state  of  things 
infinitely  to  be  deplored  by  all.  It  was  not  surprising, 
then,  that  they  should  have  made  some  attempt  to  settle 
principles  which  would  probably  occur  and  which  were 
in  some  degree  connected  with  the  point  before  them." 1 
Jefferson  earnestly  denied  the  soundness  of  every 
proposition  involved  in  the  decision  of  Marbury's  Case. 
He  denied  (1)  that  Marbury  had  any  legal  right  to  his 
undelivered  commission;  but,  if  so,  he  denied  (2)  that 
the  court  had  any  power  to  issue  a  mandamus  to  a  co- 
or^inate  department  of  the  Government;  and  he  after 
wards  denied  (3)  that  the  court  could  interpose  what 
he  terms  a  "  judicial  veto  "  upon  an  act  of  another  co 
ordinate  department,  namely  the  legislative  department. 
Marshall  was  therefore  not  only  warranted  on  sound 
legal  principles  to  deal  with  the  case  precisely  as  he  did 
in  his  opinion,  but  the  extraordinary  and  novel  circum 
stances  made  it  entirely  proper,  if  not  necessary,  to  deal 
with  it  in  this  manner.  In  any  just  sense,  no  part  of  the 
opinion  is  obiter,  a  word  denoting  something  not  easy  to 
define  with  absolute  precision  and  often  difficult  to  apply. 
I  forbear  further  observations,  except  to  say  that 
in  these  volumes  will  be  found  a  more  extended  vindica- 

1  Burr's  Trial  (Robertson),  II,  405. 


xxxi  Introduction. 

tion  of  Marshall's  course  by  an  eminent  judge  1  and  an 
eminent  lawyer,2  in  whose  views  and  conclusions  I  fully 
concur. 

VIII. 

The  late  Mr.  Justice  Stephen  commences  his  Story  of 
Nuncomar  and  the  Impeachment  of  Sir  Elijah  Impey  on 
the  accusations  of  Warren  Hastings,  in  these  words:  "  In 
writing  the  i  History  of  the  Criminal  Law  of  England, ' 
I  was  much  struck  with  the  way  in  which  nearly  all  of 
the  most  important  parts  of  our  history  connect  them 
selves  one  way  or  another  with  the  administration  of 
criminal  justice,  and  with  the  importance  which,  in 
writing  history,  attaches  to  a  technical  knowledge  of  the 
law."  This  observation,  if  not  so  fully  true  of  American 
as  of  English  history,  is  emphatically  true  of  the  cases  of 
Aaron  Burr  indicted  for  treason  and  also  for  setting  on  foot 
an  unlawful  military  expedition  against  the  then  Spanish 
province  of  Mexico.  None  of  Marshall's  rulings  on  these 
celebrated  trials  is  questioned  except  the  one  awarding 
writs  of  subposna  duces  tecum  addressed  to  President 
Jefferson  commanding  him  to  appear  at  the  court  in  Rich 
mond  and  produce  certain  designated  letters  of  General 
Wilkinson  to  the  President,  which  Burr  stated  on  oath 

1  Francis  M.  Finch,  sometime  Judge  of  the  Court  of  Appeals  of  the 
State  of  New  York,  Address,  Vol.  I,  394  et  seq. 

2U.  M.  Rose,  late  President  of  the  American  Bar  Association, 
Address,  Vol.  Ill,  115  et  seq. 


John  Marshall  Memorial.  xxxii 

might  be  material  to  his  defense.  The  details  which  I 
have  gathered  from  Robertson's  short-hand  report  of  the 
trial,  Jefferson's  letters  to  District  Attorney  Hay  and 
Randall's  Life  of  Jefferson,  so  far  as  material,  are  given 
in  the  margin.1 

1  Before  indictment  found,  Burr  made  an  affidavit,  June  10, 1807,  in 
pursuance  of  notice  given  the  day  before,  that  he  had  great  reason 
to  believe  that  General  Wilkinson's  letter  to  President  Jefferson, 
dated  October  21, 1806,  mentioned  in  the  President's  message  of  Jan 
uary  22,  1807,  with  the  accompanying  documents  and  the  President's 
answer,  "  may  be  material  in  his  defense,"  and  asked  a  subpoena  duces 
tecum  directed  to  the  President  commanding  him  or  the  Secretaries 
having  them  in  charge  to  appear  in  court  bringing  the  letter  of  Gen 
eral  Wilkinson  and  the  documents  and  the  President's  answer  to  the 
letter.  (Burr's  Trial,  I,  119.)  Whether  such  a  subpoena  could  be 
awarded  in  any  case,  or  on  the  showing  made  it  ought  to  be  awarded, 
was  discussed  at  the  bar  for  three  days  with  no  little  warmth  and 
asperity  by  Burr  himself  and  by  Wickham,  Martin,  Edmund  Ran 
dolph  and  Botts,  his  counsel,  in  support  of  the  motion,  and  by  Hay, 
MacRae  and  Wirt  in  opposition  to  it.  The  arguments  ended  June  12. 

On  June  9,  as  soon  as  the  subpoena  was  applied  for,  District  Attor 
ney  Hay,  in  open  court,  promised  if  possible  to  obtain  the  papers, 
saying  he  had  no  doubt  he  should  succeed.  Counsel  being  unable  to 
make  any  arrangement  as  to  the  production  of  the  papers,  the  Chief 
Justice,  June  13,  delivered  an  elaborate  opinion  (Burr's  Trial,  1, 177- 
189)  holding  that  the  court  had  the  power  to  issue  a  subpoena  duces 
tecum  directed  to  the  President,  and  that  the  showing  made  therefor 
was  sufficient.  An  express  having  been  immediately  sent  by  Burr 
with  the  subpoena  to  the  President,  the  messenger  returned  with  "a 
verbal  reply  from  the  President  that  the  papers  wanted  would  not  be 
sent  by  him,"Le.  by  the  messenger.  (Burr's Trial, 1, 21 1-249.)  In  fact,  the 
President,  on  application  of  the  district  attorney,  had  already  volun 
tarily  sent  the  papers  as  far  as  he  had  them  in  his  possession  to  that 
officer  accompanied  with  a  letter  dated  June  12,  which  began:  "Your 
letter  of  the  9th  is  this  moment  received.  Reserving  the  necessary 
right  of  the  President  of  the  United  States  to  decide  independently 
of  all  other  authority  what  papers  coming  to  him  as  President  the 


xxxiii  Introduction. 

The  legality  or  propriety  of  Marshall's  orders  grant 
ing  subpoenas  to  the  Executive  head  of  the  Government 
to  appear  in  court  as  a  witness  or  to  appear  and  produce 

public  interest  permits  to  be  communicated,  and  to  whom,  I  assure 
you  of  my  readiness,  under  that  restriction,  voluntarily  to  furnish, 
on  all  occasions,  whatever  the  purposes  of  justice  may  require." 
(Burr's  Trial,  I,  210.) 

The  President,  June  17,  wrote  a  similar  letter  supplemental  to  the 
foregoing,  stating  that  he  had  ordered  the  Secretary  of  War  to  fur 
nish  copies  of  the  orders  desired  by  the  defendant,  and  offering  to  give 
his  deposition  in  Washington  "if  the  defendant  supposes  that  there  are 
any  facts  within  the  knowledge  of  the  heads  of  the  departments,  or 
of  myself,  which  can  be  useful  for  his  defense."  (Id.,  I,  254.)  But 
the  President  expressly  denied  any  obligation  or  duty  to  attend  in 
person  at  Richmond,  stating  the  reasons  and  ground  of  this  view  in 
the  following  language:  "As  to  our  personal  attendance  at  Rich 
mond,  I  am  persuaded  the  court  is  sensible  that  paramount  duties 
to  the  nation  at  large  control  the  obligation  of  compliance  with  its 
summons  in  this  case,  as  it  would  should  we  receive  a  similar  one 
to  attend  the  trials  of  Blennerhasset  and  others  in  the  Mississippi 
Territory,  those  instituted  in  St.  Louis  and  other  places  on  the 
Western  waters,  or  at  any  place  other  than  the  seat  of  government. 
To  comply  with  such  calls  would  leave  the  nation  without  an  Exec 
utive  branch,  whose  agency  nevertheless  is  understood  to  be  so  con 
stantly  necessary  that  it  is  the  sole  branch  which  the  Constitution 
requires  to  be  always  in  function.  It  could  not  then  intend  that  it 
should  be  withdrawn  from  its  station  by  any  co-ordinate  authority." 
(Burr's  Trial,  I,  255;  Randall's  Life  of  Jefferson,  III,  210.)  The  Presi 
dent  also  insisted  that  "  from  the  nature  of  the  case  the  Executive 
must  be  the  sole  judge  of  what  proceedings  and  papers  the  public 
interest  will  permit  to  be  published.  .  .  .  Consider  yourself  the 
organ  for  communicating  these  sentiments  to  the  court."  (Id.  211.) 

On  June  19,  the  President  for  the  first  time  saw  Marshall's  opinion 
of  the  13th,  and  in  an  unofficial  letter  to  the  District  Attorney  June 
20,  criticising  the  opinion,  he  repeats  the  foregoing  views,  and  in 
quires:  "  But  would  the  Executive  be  independent  of  the  judiciary 
if  he  were  subject  to  the  commands  of  the  latter;  if  the  several 
courts  could  bandy  him  from  pillar  to  post,  keep  him  constantly 


John  Marshall  Memorial  xxxiv 

letters  or  documents  has  been  the  subject  of  controversy 
among  lawyers  from  that  time  to  the  present,  and  differ 
ent  opinions  thereon  are  expressed  in  the  addresses  here 
published. 

trudging  from  north  to  south  and  east  to  west,  and  withdraw  him 
entirely  from  his  constitutional  duties  ?  "  The  President,  anticipating 
that  an  attempt  might  possibly  be  made  to  arrest  him  for  contempt 
of  court  for  not  responding  in  person  to  the  subpoena,  added:  "  The 
intention  of  the  Constitution  that  each  branch  should  be  independent 
of  the  others  is  further  manifested  by  the  means  it  has  furnished  to 
each  to  protect  itself  from  enterprises  of  force  attempted  on  them 
by  the  others,  and  to  none  has  it  given  more  effectual  or  diversified 
means  than  to  the  Executive."  (Randall's  Life  of  Jefferson,  III,  212.) 

Thus  rested  the  matter  until  the  trial  of  Burr  for  treason  August 
17  to  September  1,  1807,  when  the  case  of  the  Government  failed 
because  of  its  inability  to  make  proof  of  the  overt  act  of  treason  at 
Blennerhasset's  Island  as  laid  in  the  indictment,  and,  therefore,  there 
was  no  necessity  for  the  Wilkinson  letter. 

On  the  subsequent  trial  of  Burr  for  misdemeanor  in  setting  on 
foot  a  military  expedition  against  the  Mexican  possessions  of  Spain, 
Burr,  on  September  4,  1807,  renewed  his  application  for  the  produc 
tion  of  the  above-mentioned  letter  of  October  21,  1806,  and  also  an 
other  letter  from  Wilkinson  to  the  President  of  November  12  of  the 
same  year,  for  which  a  subpoena  duces  tecum  had  been  awarded, 
saying  in  open  court  that  "the  President  was  in  contempt,  and  he 
had  a  right  to  demand  process  of  contempt  against  him."  (Burr's 
Trial,  II,  504.)  The  District  Attorney  made  no  objection  to  produc 
ing  the  letter  of  October  21,  or  the  letter  of  November  12,  except  two 
passages  therein,  which  he  said  were  wholly  irrelevant  and  improper 
to  be  disclosed,  the  President  having  expressly  authorized  him  to 
keep  back  such  parts  of  the  letter  as  the  District  Attorney  might 
think  it  would  be  improper  to  be  made  public.  These  parts  had  not, 
however,  so  far  as  the  court  was  informed,  been  selected-  or  desig 
nated  by  the  President,  nor  had  he  declared  it  to  be  incompatible 
with  the  public  welfare  to  disclose  them.  When  Mr.  Hay  refused  in 
open  court  to  produce  for  public  inspection  the  whole  letter  of  No 
vember  12,  Burr  denying  the  right  of  the  President  to  delegate  his 


XXXV 


Introduction. 


The  learned  Professor  Thayer  (whose  recent  death 
we  have  to  deplore),  speaking  of  the  issue  of  a  subpoena 
to  President  Jefferson,  remarks: 

"  It  was  a  strange  conception  of  the  relations  of  the 
different  departments  of  the  Government  to  each  other, 
to  imagine  that  a  subpoena,  that  is  to  say  an  order  accom 
panied  with  a  threat  of  punishment,  was  a  legitimate  judi 
cial  mode  of  communicating  with  the  Chief  Executive. 

authority  to  another  asked  that  a  subpoena  duces  tecum  directed  to 
Mr.  Hay  be  awarded  immediately.  This  being  done  Mr.  Hay  at  once 
made  this  return  (Burr's  Trial,  II,  511,  513): 

"  I  hereby  acknowledge  service  of  the  above  subpoena,  and  here 
with  return  a  correct  and  true  copy  of  the  letter  mentioned  in  the 
same,  dated  12th  November,  1806.  excepting  such  parts  thereof  as 
are,  in  my  opinion,  not  material  for  the  purposes  of  justice,  for  the 
defense  of  the  accused  or  pertinent  to  the  issue  now  about  to  be 
joined;  the  parts  excepted  being  confidentially  communicated  to  the 
President,  and  he  having  devolved  on  me  the  exercise  of  that  discre 
tion  which  constitutionally  belongs  to  himself.  The  accuracy  of 
this  I  am  willing  to  refer  to  the  judgment  of  the  court,  by  submit 
ting  the  original  letter  to  its  inspection.  I  further  certify,  in  order 
to  show  more  clearly  the  irrelevancy  of  the  parts  excepted  to  any 
defense  which  can  be  set  up  in  the  present  case,  that  those  parts 
contain  a  communication  of  the  opinion  of  the  writer  concerning 
certain  persons,  about  which  opinion,  or  the  fact  of  his  having  com 
municated  it,  the  writer,  if  a  witness  before  the  court,  could  not 
legally,  as  I  conceive,  be  interrogated;  and  about  which  no  evidence 
could  legally  be  received  from  other  persons. 

"GEORGE  HAY." 

The  sufficiency  of  this  return  being  objected  to,  the  questions 
thereon  arising  were,  fully  debated,  and  thereon  Marshall  rendered 
his  second  opinion  (Burr's  Trial,  II,  533)  that  the  defendant  was  en 
titled  to  have  the  original  letter  produced,  and  ordered,  on  the  de 
fendant's  motion,  that  unless  produced  the  cause  would  be  con 
tinued.  (Id.  537.)  See  infra,  pp.  xlvii,  xlviii,  as  to  Jefferson's  letters 
to  Hay  of  September  7. 


John  Marshall  Memorial.  xxxvi 

On  Jefferson's  part,  this  order  was  received  with  the  ut 
most  discontent,  and  justly.  He  had  a  serious  apprehen 
sion  of  a  purpose  to  arrest  him  by  force,  and  was  prepared 
to  protect  himself.  Meantime  he  sent  to  the  United  States 
Attorney  at  Richmond  the  papers  called  for,  but  explained 
with  dignity  that,  while  the  Executive  was  willing  to 
testify  in  Washington,  it  could  not  allow  itself  to  be 
withdrawn  from  its  station  by  any  co-ordinate  author 
ity."1 

1  Thayer,  Life  of  John  Marshall,  79,  80.  Same  view,  see  post,  I, 
p.  233.  See  Ford's  Jefferson,  IX,  62;  draft  of  a  letter  to  District  At 
torney  Hay,  given  post,  p.  xlix,  note.  Magruder  thus  concludes  his 
review  of  the  trial  of  Burr  (Life  of  Marshall,  230):  "Thus  ended  a 
State  trial,  the  most  famous  which  took  place  in  the  United  States 
prior  to  the  impeachment  of  President  Johnson.  It  could  have  had 
no  other  conclusion  in  accordance  with  law.  Whether  Burr  was 
morally  guilty  was  a  question  which  has  been  since  so  much  dis 
cussed  that  it  cannot  be  regarded  as  having  been  settled  by  the  ver 
dict,  but  that  he  was  not  legally  proved  to  be  guilty  is  certain.  The 
duty  of  holding  the  scales  of  justice  even  at  this  trial  was  the  most 
difficult  that  Marshall  had  to  encounter  during  his  incumbency  on 
the  bench.  Jefferson  succeeded  in  importing  so  much  personal  feel 
ing  and  partisanship  into  the  proceedings  that  the  trial  wore  a  very 
peculiar  aspect  There  was  more  in  it  than  party  hostility;  there 
was  open  antagonism  between  the  President  of  the  United  States 
and  the  Chief  Justice;  there  were  also  covert  and  indirect  but  pow 
erful  influences  at  work  in  aid  of  the  prosecution.  No  action  of 
Marshall  could  have  escaped  contemporary  criticism,  and  in  this 
case  he  did  not  escape  it.  He  was  very  severely  attacked  by  many 
persons  who  honestly  thought  that  he  had  done  wrong.  But  the 
fairer  judgment  of  posterity  has  given  him  credit  for  perfect  im 
partiality  and  for  sound,  even-handed  and  courageous  administration 
of  the  law.  The  issuing  of  the  subpoena  to  Jefferson  alone  remains 
a  controverted  point;  yet  as  to  this  it  must  be  admitted  that  no  au 
thority  can  be  higher  or  more  satisfactory  than  that  of  the  Chief 
Justice  himself." 


xxxvii  Introduction. 

My  own  studies  and  reflections  upon  the  subject  have 
led  me  to  the  following  conclusions : 

1.  No  "  such  divinity  doth  hedge  "  the  President  that 
by  virtue  of  his  office  he  is,  in  criminal  cases,  totally  ex 
empt  from  judicial  process  requiring  his  attendance  as  a 
witness.  In  the  absence  of  controlling  legislation,  a 
court  in  such  cases  has  the  power,  agreeably  to  the  rules 
and  usages  of  law,  to  issue  to  him  a  subpoena  generally 
to  appear  as  a  witness,  or  a  subpoena  duces  tecum  to  pro 
duce  a  material  and  relevant  document  in  his  possession. 

Such  was  the  express  decision  of  Chief  Justice  Mar 
shall  in  Burr's  case ;  and  accordingly  he  awarded,  on  Burr's 
application,  a  subpoena  duces  tecum  directed  to  President 
Jefferson,  then  in  Washington,  requiring  him  to  appear 
and  produce  at  the  trial  in  Richmond  certain  designated 
letters  and  documents  in  his  possession  or  under  his  con 
trol,  which  the  defendant  stated  under  oath  might  be 
material  to  his  defense. 

The  substantial  ground  of  the  criticism  of  Marshall's 
action  in  subpoenaing  the  President  is  the  imputed  abso 
lute  independence,  personal  and  official,  of  the  Executive 
of  any  control  by  a  co-ordinate  department,  and  the  in 
ability  of  the  court  to  enforce  against  the  President 
obedience  to  the  writ  by  proceedings  for  contempt, —  the 
argument  being  that  the  want  of  ability  to  enforce  the 
writ  demonstrates  the  want  of  power  to  issue  it.  These 
were  Jefferson's  views.  He  stated  them  distinctly  in  his 


John  Marshall  Memorial.  xxxviii 

letters  to  District  Attorney  Hay,  ana  ne  directed  that 
officer  to  communicate  them  to  the  court.  In  an  unoffi 
cial  letter  to  the  same  officer  he  clearly  intimated  that 
he  would  resist  by  force,  as  an  invasion  of  the  Executive 
province,  any  attempt  on  the  part  of  the  Judiciary  to  com 
pel  his  personal  attendance  at  Richmond,  and  thereby 
withdraw  him  from  the  exercise  of  his  functions. 

The  decision  of  the  Chief  Justice  as  to  the  power  of 
the  court,  and,  on  a  proper  showing  by  the  defendant, 
the  duty  of  the  court  to  issue  the  writ,  seems  to  me  to  be 
correct.  It  is  a  singular  fact  which  Marshall's  critics 
appear  to  have  overlooked  that  each  of  the  three  able 
lawyers  who  represented  the  United  States  on  the  Burr 
trials,  including  Mr.  Wirt,  who  was  specially  retained  for 
the  Government  by  the  President,  distinctly  and  repeat 
edly  admitted  the  power;  the  controversy  at  the  bar 
being  waged,  not  against  the  general  power  of  the  court 
to  subpoena  the  President,  but  against  the  sufficiency  of 
the  showing  made  by  the  defendant  for  the  exercise  of 
the  power,  since  Burr's  affidavit  for  the  writ  only  stated 
that  the  letter  and  documents  "  may  be  material  to  his 
defense."  *  Accordingly,  the  Chief  Justice  in  giving  his 

1  The  following  is  taken  from  Robertson's  report  of  the  trial  of 
Burr: 

MR.  WIRT:  "The  counsel  for  the  prosecution  do  not  deny  that  a 
general  subpoena  ad  testificandum  may  be  issued  to  summon  the 
President  of  the  United  States  and  that  he  is  as  amenable  to  that 
process  as  any  other  citizen.  If  his  public  functions  disable  him 


xxxix  Introduction. 

opinion  on  the  point  now  under  discussion  said :  "  That 
the  President  of  the  United  States  may  be  subpoenaed 
and  examined  as  a  witness,  and  required  to  produce  any 

from  obeying  the  process,  that  would  be  a  satisfactory  excuse  for 
his  non-attendance  pro  hcec  vice;  but  does  not  go  to  prove  his  total 
exemption  from  the  process.  .  .  .  But  here  is  a  motion  for  a  sub 
poena  duces  tecum  to  compel  the  President  to  produce  certain  papers 
of  state,  the  materiality  of  which  is  not  shown. 

"  I  shall  contend  first,  sir,  that  the  subpoena  duces  tecum  is  not  a 
process  of  right;  that  the  motion  for  it  is  a  motion  addressed  to  the 
discretion  of  the  court;  and  that  the  court  may  award  or  withhold 
it  as  it  sees  fit.  In  the  next  place,  I  shall  contend  that  this  discre 
tion  of  the  court  should  be  controlled  and  determined  only  by  rele 
vancy  and  materiality  of  the  papers  required.  And  thirdly,  as  far 
as  appears,  the  papers  required  are  both  irrelevant  and  immaterial. 

"  I  shall  proceed  to  show,  in  the  first  place,  that  the  subpoena  duces 
tecum  is  not  a  process  of  right,  but  that  the  application  for  it  is  ad 
dressed  merely  to  the  discretion  of  the  court." 

MR.  WICKHAM  (Counsel  for  Burr) :  "  That  is  admitted."  Burr's  Trial 
(Robertson),  I,  136,  137.  A  like  admission  was  expressly  made  by 
Mr.  MacRae,  counsel  for  the  United  States,  Id.  131.  And  also  by 
District  Attorney  Hay,  Id.  149.  See  also  Id.  127  (Luther  Martin), 
154  (Edmund  Randolph). 

The  debate  was  not  upon  the  question  whether  a  general  subpoena 
to  the  President  could  issue  (that  was  conceded),  but  upon  the  right 
of  the  defendant  upon  the  showing  made  to  the  particular  subpoena 
duces  tecum  which  he  sought  and  the  duty  of  the  court  under  the 
circumstances  to  issue  it  to  the  President  Accordingly  Marshall, 
in  giving  his  opinion  (Burr's  Trial,  I,  178-180),  after  referring  to 
the  provision  of  the  eighth  amendment  of  the  Constitution  giving 
to  the  accused  "in  all  criminal  prosecutions  the  right  to  compul 
sory  process  for  obtaining  witnesses  in  his  favor,"  and  to  a  similar 
provision  in  an  act  of  Congress,  said:  "There  is  no  exception  what 
ever  "  in  the  Constitution  or  statute.  ..."  If,  then,  as  is  ad 
mitted  by  the  counsel  for  the  United  States,  a  subpoena  may  issue  to 
the  President,  the  accused  is  entitled  to  it  of  course;  and  whatever 
difference  may  exist  with  respect  to  the  power  to  compel  the  same 
obedience  to  the  process  as  if  it  had  been  directed  to  a  private  citi- 


John  Marshall  Memorial.  xl 

paper  in  his  possession,  is  not  controverted.  The  President, 
although  subject  to  the  general  rules  which  apply  to 
others,  may  have  sufficient  motives  for  declining  to  pro- 

zen,  there  exists  no  difference  with  respect  to  the  right  to  obtain  it. 
The  guard  furnished  to  this  high  officer  to  protect  him  from  being 
harassed  by  vexatious  and  unnecessary  subpoenas  is  to  be  looked  for 
in  the  conduct  of  the  court  after  those  subpoenas  have  issued;  not 
in  any  circumstance  which  is  to  precede  their  being  issued.  If,  in 
being  summoned  to  give  his  personal  attendance  to  testify,  the  law 
does  not  discriminate  between  the  President  and  a  private  citizen, 
what  foundation  is  there  for  the  opinion  that  this  difference  is  cre 
ated  by  the  circumstance  that  his  testimony  depends  on  a  paper  in 
his  possession,  not  on  facts  which  have  come  to  his  knowledge  other 
wise  than  by  writing?  The  court  can  perceive  no  foundation  for 
such  an  opinion.  The  propriety  of  introducing  any  paper  into  a 
case  as  testimony  must  depend  on  the  character  of  the  paper,  not 
on  the  character  of  the  person  who  holds  it.  A  subpoena  duces  tecum, 
then,  may  issue  to  any  person  to  whom  an  ordinary  subpoena  may 
issue,  directing  him  to  bring  any  paper  of  which  the  party  praying 
it  has  a  right  to  avail  himself  as  testimony,  if,  indeed,  that  be  the 
necessary  process  for  obtaining  the  view  of  such  paper."  (Burr's 
Trial  (Robertson),  1, 182.) 

And  in  the  second  opinion  granting  the  motion  of  Burr  to  con 
tinue  the  trial  for  misdemeanor  unless  the  District  Attorney  (in 
whose  possession  was  the  original  letter  of  November  12)  would  pro 
duce  that  letter  entire,  the  Chief  Justice  said:  "That  the  President 
of  the  United  States  may  be  subpoenaed  and  examined  as  a  witness, 
and  required  to  produce  any  paper  in  his  possession,  is  not  contro 
verted."  (Id.,  II,  535.)  "  In  this  case,  however,  the  President  has  as 
signed  no  reason  whatever  for  withholding  the  paper  called  for. 
The  propriety  of  withholding  it  must  be  decided  by  the  President 
himself,  not  by  another  for  him,"  e.  g.,  Mr.  Hay.  (Id.,  II,  536.)  "Per 
haps  the  court  ought  to  consider  the  reasons  which  would  induce 
the  President  to  refuse  to  exhibit  such  a  letter  as  conclusive  on  it, 
unless  such  letter  could  be  shown  to  be  absolutely  necessary  in  the 
defense."  "In  no  case  of  this  kind  would  a  court  be  required  to  pro 
ceed  against  the  President  as  against  an  ordinary  individual.  .  .  . 
Had  the  President  when  he  transmitted  it  (to  Mr.  Hay)  stated  that 


xli  Introduction. 

duce  a  particular  paper,  and  those  motives  may  be  such 
as  to  restrain  the  court  from  enforcing  its  production."1 
"  The  guard  furnished  to  this  high  officer  to  protect  him 
from  being  harassed  by  vexatious  and  unnecessary  sub- 
in  his  judgment  the  public  interest  required  certain  parts  of  it  to  be 
kept  secret  and  had  accordingly  made  a  reservation  of  them,  all 
proper  respect  would  have  been  paid  to  it;  but  the  President  has 
made  no  such  reservation.  .  .  .  The  only  ground  laid  for  the 
court  to  act  upon  is  the  affidavit  of  the  accused;  and  from  that  the 
court  is  induced  to  order  that  the  paper  (original  letter  of  Novem 
ber  12  in  Mr.  Hay's  possession)  be  produced,  or  the  cause  be  con 
tinued."  (Id.,  II,  536,  537.) 

Mr.  Hay,  on  this  ruling  being  made,  said  "  he  would  produce  the 
letter  under  the  restrictions  of  the  court  (that  there  should  be  no 
publicity  or  use  made  of  the  parts  of  it  which  Mr.  Hay  desired  to  re 
serve,  'but  what  was  necessarily  attached  to  the  case');  preferring 
that  to  a  continuance  of  the  cause."  (Id.  537.) 

Mr.  Jefferson  took  higher  grounds  than  the  counsel  of  the  Gov 
ernment  and  denied  the  power  of  the  court  under  any  circumstances 
to  issue  a  subpoena  of  any  kind  to  compel  his  personal  attendance  at 
the  trial,  since  to  comply  with  its  commands  "would  leave  the  Na 
tion  without  an  Executive  branch,  the  sole  branch  which  the  Consti 
tution  requires  to  be  always  in  function;  and  the  Constitution  could 
not  therefore  intend  that  the  Executive  should  be  withdrawn  from 
its  station  by  any  co-ordinate  authority."  (Letter  to  Hay,  June  17, 
1807;  Text,  Burr's  Trial,  I,  254,  255;  Jefferson's  Works  (published  by 
Congress),  V,  96;  Same  point,  letter  to  Hay,  June  20,  1807,  Id.  103.) 

The  President  also  insisted  that  he  had  the  sole  right  to  determine 
independently  of  any  other  authority  what  papers  coming  to  him  as 
President  ought  not  to  be  made  public,and  that  his  determination  was 
conclusive  upon  the  courts  even  in  the  case  of  judicial  trial  for  a 
capital  offense.  On  this  point  he  said,  "he  (the  President),  of 
course,  from  the  nature  of  the  case,  must  be  the  sole  judge  of  which 
of  them  the  public  interest  will  permit  publication."  (Burr's  Trial, 
1, 210  (letter  to  Hay,  June  12,  1807);  Id.  255  (letter  to  Hay,  June  17, 
1807);  Works  of  Jefferson  (published  by  Congress),  Vol.  V,  94,  96.) 

1  Burr's  Trial  (Robertson),  II,  535. 


John  Marshall  Memorial.  xlii 

poenas  is  to  be  looked  for  in  the  conduct  of  the  court 
after  those  subpoenas  have  issued;  not  in  any  circum 
stance  which  is  to  precede  their  being  issued.  .  .  . 
The  court  can  perceive  no  objection  to  a  subpoena  duces 
tecum  to  any  person  whatever,  provided  the  case  be  such 
as  to  justify  the  process."1 

That  is  to  say,  the  right  of  the  defendant  to  the  pro 
cess  of  the  court,  and  the  power  of  the  court  to  award  ity 
is  one  thing;  what  the  court  will  do  or  can  do  if  the  re 
quirements  of  the  writ  be  not  complied  with  is  quite 
another  thing,  and  one  to  be  dealt  with  when  return  to 
the  writ  shall  be  made.  I  may  further  observe  that  the 
law  has  provided  no  method  of  voluntary  communication 
by  the  court  with  the  Executive.  It  cannot  open  a  cor 
respondence  or  negotiate  terms.  It  does  not  write  letters. 
It  issues  writs,  makes  orders  and  renders  judgments;  and, 
in  the  absence  of  legislation,  it  can  act  in  no  other  way. 
It  is  no  answer,  as  it  seems  to  me,  to  the  power  to  issue 
the  writ  that  if  it  is  disobeyed  the  court  has  no  power  to 
enforce  obedience.  It  has  the  right  to  presume  that  its 
writ  will  be  obeyed,  or  if  not  obeyed  that  the  reasons 
therefor  will  be  shown  in  due  course  to  the  court. 

Inasmuch  as  in  Marbury  against  Madison  it  was  de 
cided  that  ours  is  a  government  of  laws  and  not  of  men, 
and  that  every  department  thereof  is  subject  to  the  su 
premacy  of  the  Constitution,  and  inasmuch  as  the  Con- 

1  Burr's  Trial,  I,  183. 


xliii  Introduction. 

stitution  expressly  gives  to  the  accused  "  in  all  criminal 
prosecutions  the  right  to  compulsory  process  for  obtain 
ing  witnesses  in  his  favor,"  no  exception  of  the  Presi 
dent  being  made  either  in  the  Constitution  or  the  act  of 
Congress  in  that  behalf,  Marshall's  conclusion  that  the 
court  has  the  power,  and  on  proper  showing  that  it  is  its 
duty,  to  issue  such  a  writ  seems  to  be  sound. 

2.  [Respecting  the  power  and  duty  of  the  court  upon 
the  return  of  the  writ,  no  certain  rules,  in  the  absence  of 
legislation,  can  be  laid  down. 

In  the  two  opinions  on  this  subject  given  by  the  Chief 
Justice  on  the  Burr  trials  he  reserved  all  such  questions 
until  the  return  of  the  process.  He  said :  "  In  no  case 
of  this  kind  would  the  court  be  required  to  proceed 
against  the  President  as  against  an  ordinary  individ 
ual."  "  I  cannot  precisely  lay  down  any  general  rule 
for  such  a  case."  And  he  added :  "  Perhaps  the  court 
ought  to  consider  the  reasons  which  would  induce  the 
President  to  refuse  to  exhibit  such  a  letter  as  conclusive 
on  it,  unless  such  letter  could  be  shown  to  be  absolutely 
necessary  in  the  defense.  .  .  .  Had  the  President, 
when  he  transmitted  the  letter  [of  November  12,  1806, 
to  the  District  Attorney,  Hay],  subjected  it  to  certain 
restrictions,  and  stated  that  in  his  judgment  the  pub 
lic  interest  required  certain  parts  of  it  to  be  kept  secret, 
and  had  accordingly  made  a  reservation  of  them,  all 


John  Marshall  Memorial.  xliv 

proper  respect  would  have  been  paid  to  it;  but  he  has 
made  no  such  reservation.  This  must  be  decided  by  him 
self,  not  by  another  for  him."  1 

Jefferson  distinctly  authorized  the  court  to  be  informed 
that  his  view  was  that  the  President's  judgment  as  to 
what  the  public  interest  required  was  conclusive,  and  not 
subject  to  judicial  revision.  The  foregoing  extracts  from 
Marshall's  opinion  tend  to  show  that  the  court  would  not 
nesessarily  accept  the  President's  judgment  as  conclusive 
if  the  paper  withheld  was  "  absolutely  necessary  in  the 
defense."  But  no  decision  of  the  point  as  to  the  con- 
dusiveness  of  the  President's  judgment  was  required. 
Upon  the  application  of  the  District  Attorney,  and  before 
Marshall's  decision  awarding  the  first  subpoena  was  made, 
the  President  voluntarily  caused  the  letter  and  docu 
ments  to  be  sent  to  the  District  Attorney,  and  they  were 
in  the  possession  of  that  officer  in  Eichmond,  the  place 
of  the  trial.  The  course  of  the  President  as  shown  in 
the  somewhat  voluminous  correspondence  with  Mr.  Hay 
is  open  to  no  fair  criticism,  and  was  dictated  by  his 
sense  of  official  duty  under  the  Constitution  "  to  protect 
the  Executive  from  judiciary  usurpation,"  and  not  by 
any  purpose  or  desire  to  deprive  Burr  of  any  proper 
testimony.  Nor,  after  careful  examination,  can  I  per 
ceive  any  ground  whatever  for  a  statement  or  suggestion 
that  Marshall's  course  was  influenced  in  the  slightest  de- 

i  Burr's  Trial,  II,  536,  537. 


xlv  Introduction. 

gree,  consciously  or  unconsciously,  by  his  personal  rela 
tions  with  the  President,  by  any  desire  to  offend  or  annoy 
him,  or,  indeed,  by  any  consideration  whatever  except  his 
deliberate  conviction  that  Burr,  on  the  case  presented  to 
the  court,  had  the  legal  right  to  the  writ,  and  conse 
quently  it  was  the  duty  of  the  court  to  protect  and  secure 
that  right, —  an  unsought,  an  unavoidable  duty,  but  one 
which  the  court  performed  with  dignity  and  courage. 

The  trials  for  treason  and  for  misdemeanor  broke 
down  by  reason  of  the  failure  of  the  Government's  evi 
dence  to  show  that  the  defendant  committed  the  offenses 
laid  in  the  indictments  at  any  place  within  the  jurisdic 
tion  of  the  court,  and  the  letters  of  General  Wilkinson 
were  not  offered  or  used  on  the  trials;  and  no  further 
rulings  were  made  by  the  court  on  the  subject  of  the 
letters  or  of  the  respective  powers  of  the  President  and 
the  court. 

The  President's  personal  attendance  had  been  waived 
provided  the  required  documents  were  produced,  and 
the  necessity  of  making  any  decision  as  to  the  conclu- 
siveness  of  his  power  to  withhold  papers  was  avoided 
by  the  motion  of  the  defendant  that,  unless  the  whole 
letter  of  November  12  in  Mr.  Hay's  possession  was  pro 
duced  and  deposited  with  the  clerk  for  the  defendant's 
inspection,  the  cause  be  continued.  Marshall,  after  full 
argument,  decided  that  he  would  sustain  the  motion, 
whereupon  Mr.  Hay,  rather  than  submit  to  a  continu- 


John  Marshall  Memorial.  xlvi 

ance,  consented  to  produce  the  letter,  but,  as  above  stated, 
it  was  not  offered  or  used  on  the  trial.1 


Some  curious,  and  what  came  perilously  near  proving 
momentous,  facts,  and  which  are  necessary  to  a  full  under 
standing  of  the  situation,  appear  by  comparing  what  is 
shown  in  Robertson's  report  of  the  trial  of  Burr  with  the 
two  letters  of  September  7, 1807,  below  mentioned,  written 
by  the  President  from  his  home  at  Monticello  to  Mr.  Hay 
at  Eichmond,  where  Burr's  second  trial  was  in  progress. 
On  September  4,  Mr.  Hay  stated  in  open  court  that  he 
had  in  his  possession  the  original  letter  of  General  Wil 
kinson  to  the  President  of  November  12,  but  he  declined 
to  produce  and  submit  to  public  inspection  the  whole 
letter.  Thereupon  the  court  awarded  a  subpoena  duces 
tecum  directed  to  Mr.  Hay,  returnable  immediately,  re 
quiring  Mm  to  produce  the  letter  which  he  admitted  to 
be  in  his  possession.  Mr.  Hay  at  once  acknowledged 
service  of  the  writ,  and  immediately  furnished,  Septem 
ber  4,  a  true  copy  of  the  letter  of  November  12, "  excepting 
such  parts  thereof  as  are,  in  my  opinion,  not  material  for 
the  purposes  of  justice  for  the  defense,  or  pertinent  to  the 
issue  about  to  be  joined ;  the  parts  excepted  being  con 
fidentially  communicated  to  the  President,  and  he  hav- 

1  Magruder  says  that  the  letters  "were  used  by  the  prisoner  on  his 
trial."  (Life  of  Marshall,  225.)  But  I  find  no  evidence  of  this  in 
Robertson's  report  of  the  trials  of  Burr. 


xivii  Introduction. 

in£  devolved  on  me  the  exercise  of  that  discretion  which 

o 

constitutionally  belongs  to  himself." 1  It  was  on  the 
sufficiency  of  this  return  that  Marshall's  second  opinion 
was  given ;  it  was  apparently  rendered  on  September  4, 
but  at  all  events  it  was  before  the  next  meeting  of  the 
court,  on  September  9.2  It  was  in  this  opinion  that  the 
Chief  Justice  decided  that  the  President  could  not  dele 
gate  his  discretion  to  Mr.  Hay;  that  it  was  the  duty  of 
Mr.  Hay  to  produce  for  inspection  the  entire  original 
letter  admitted  to  be  in  his  possession,  and  that  unless  he 
did  so  the  defendant's  motion  to  continue  the  cause  would 
be  granted.  Kobertson's  short-hand  report  shows  noth 
ing  further  in  respect  to  the  letter  except  that  Mr.  Hay 
stated  to  the  court  that  he  preferred  to  produce  it  rather 
than  submit  to  a  continuance.3 

Mr.  Jefferson's  published  correspondence  contains  the 
two  letters  above  mentioned  to  Mr.  Hay,  both  dated  Sep 
tember  7,  and  written  from  Monticello.  From  these  let 
ters  it  appears  that  Mr.  Hay  had  enclosed  to  the  President 
on  September  5  a  subpoena  duces  tecum,  and  also  the 
original  letter  of  General  Wilkinson  of  November  12.  In 
one  of  the  letters  of  September  7,  the  President  said  to 
Mr.  Hay :  "  I  received  late  last  night  your  favor  of  the  day 
before,  and  now  re-enclose  you  the  subpoena.  As  I  do  not 

1  Burr's  Trial  (Robertson),  II,  505,  513;  ante,  p.  xxxv,  note. 

2  Burr's  Trial,  II,  504,  533,  537. 
JId.,  11,537. 


John  Marshall  Memorial.  xlviii 

believe  that  the  District  [Circuit]  Courts  have  a  power  of 
commanding  the  Executive  Government  to  abandon  supe 
rior  duties  and  attend  on  them  at  whatever  distance,  I 
am  unwilling,  by  any  notice  of  the  subpoena,  to  set  a 
precedent  which  might  sanction  a  proceeding  so  prepos 
terous.  I  enclose  you,  therefore,  a  letter,  public  and  for 
the  court,  covering  substantially  all  they  ought  to  desire. 
I  return  you  the  original  letter  of  November  12."  In  the 
letter  intended  for  the  court  the  President  says:  "I  send 
you  a  copy  of  General  Wilkinson's  letter  of  November  12, 
1806,  omitting  only  certain  passages,  which  are  entirely 
confidential,  given  for  my  information  in  the  discharge 
of  my  executive  functions,  and  which  my  duties  and  the 
public  interest  forbid  me  to  make  public;  which  passages 
so  omitted  are  in  no  wise  material  for  the  purposes  of 
justice  on  either  of  the  charges  against  Aaron  Burr,  but 
are  on  subjects  irrelevant  to  any  issues  which  can  arise 
out  of  those  charges."  1 

It  is  thus  seen  that  the  President  was  ready,  if  need 
be,  to  make  or  meet  the  issue  with  the  court  as  to  the 
conclusiveness  of  the  Executive's  action  refusing  to  dis 
close  certain  parts  of  General  Wilkinson's  letter;  but  the 

1  Jefferson's  Works  (published  by  Congress),  V,  190,  191.  All  of  the 
President's  correspondence  with  District  Attorney  Hay,  excepting  a 
letter  of  September  4,  concerning  the  Burr  trials  is  collected  and 
conveniently  arranged  in  chronological  order  by  Mr.  Ford.  Jeffer 
son's  Writings  (Ford),  IX,  62  et  seq. 


xlix  Introduction. 

course  of  the  trial  chanced  to  be  such  as  not  to  require 
of  the  court  a  decision  of  the  point,  and  the  threat 
ened  conflict  was  avoided.1  Such  a  conflict,  however, 

1  That  the  President  was  prepared  to  resist,  by  force  if  necessary, 
the  execution  of  the  process  of  the  court,  appears  not  only  in  his 
letter  to  Mr.  Hay  of  date  of  June  20, 1807  (Jefferson's  Works  (by  Con- 
gress),  V,  on  p.  104),  but  also  by  the  following  draft  of  a  letter  to 
Mr.  Hay  (Writings  of  Jefferson  (Ford),  IX,  62),  which  Mr.  Ford  says 
may  never  have  been  sent,  but  which  he  publishes  just  after  the  let 
ter  from  Jefferson  to  Hay  of  August  7,  1807.  It  will  be  .observed 
that  Mr.  Jefferson  claims  the  same  immunity  for  the  "  heads  of  de 
partments"  that  he  claims  for  the  ''Executive."  "The  inclosed  let 
ter,"  says  Jefferson  to  Hay, "  is  written  in  a  spirit  of  conciliation, 
and  with  the  desire  to  avoid  conflicts  of  authority  between  the 
high  branches  of  the  govmt  which  would  discredit  it  equally  at 
home  &  abroad.  That  Burr  &  his  counsel  should  wish  to  (struck 
out  "divert  the  public  attention  from  him  to  this  battle  of  giants 
was  to  be  ")  convert  his  trial  into  a  contest  between  the  judiciary 
&  Exve  Authorities  was  to  be  expected.  But  that  the  Ch.  Justice 
should  lend  himself  to  it,  and  take  the  first  step  to  bring  it  on, 
was  not  expected.  Nor  can  it  be  now  believed  that  his  prudence 
or  good  sense  will  permit  him  to  press  it.  But  should  he,  contrary 
to  expectation,  proceed  to  issue  any  process  which  should  involve 
any  act  of  force  to  be  committed  on  the  persons  of  the  Exve  or 
heads  of  depmts,  I  must  desire  you  to  give  me  instant  notice, 
&  by  express  if  you  find  that  can  be  quicker  done  than  by  post; 
and  that  moreover  you  will  advise  the  marshal  on  his  conduct,  as 
he  will  be  critically  placed  between  us.  His  safest  way  will  be  to 
take  no  part  in  the  exercise  of  any  act  of  force  ordered  in  this  case. 
The  powers  given  to  the  Exve  by  the  constn  are  sufficient  to  protect 
the  other  branches  from  Judiciary  usurpation  of  preeminence,  & 
every  individual  also  from  judiciary  vengeance,  and  the  marshal 
may  be  assured  of  it's  effective  exercise  to  cover  him.  I  hope  how 
ever  that  the  discretion  of  the  C.  J.  will  suffer  this  question  to  lie 
over  for  the  present,  and  at  the  ensuing  session  of  the  legislature 
he  may  have  means  provided  for  giving  to  individuals  the  benefit 
of  the  testimony  of  the  Exve  functionaries  in  proper  cases,  without 
breaking  up  the  government.  Will  not  the  associate  judge  assume 


John  Marshall  Memorial.  1 

may  at  any  time  occur;  but  quite  aside  from  such  d,  con 
tingency,  the  principles  which  necessarily  underlie  the 
determination  of  the  inquiry  whether  or  how  far  the 
President  is  amenable  to  the  power  of  the  court  belong 
to  the  arcana  of  the  Constitution,  are  deeply  interesting 
in  their  nature,  and  involve  questions  similar  to  those 
which  were  discussed  or  determined  in  the  great  case  of 
Marbury  against  Madison, —  questions  whose  roots  strike 
deep  down  into  the  foundations  of  the  national  structure.1 
Whether  a  distinct  and  positive  return  by  the  Presi 
dent  to  the  writ  that  his  public  duties  require  him  to  re 
main  at  the  seat  of  government,  or  at  his  residence  for 

to  divide   his  court  and  procure  a  truce  at  least  in  so  critical  a 
juncture." 

1  In  support  of  the  view  that  the  President  is  or  may  be  exempt 
from  the  process  of  subpoena  by  reason  of  the  constitutional  nature 
of  his  duties,  reference  may  be  made  to  the  opinion  of  Attorney- 
General  Henry  Stanbery,  in  the  Opinions  of  the  Attorneys-General, 
vol.  12,  p.  35,  and  also  to  his  argument  in  the  case  of  the  State  of 
Mississippi  v.  Johnson,  4  Wallace,  475  (1866),  at  page  482  et  seq, 
Mr.  Stanbery  is  mistaken  in  his  statement  that  the  counsel  for 
the  United  States  did  not  admit  that  such  process  could  be  issued 
against  the  President.  He  is  also  mistaken  in  saying  that  Col.  Burr 
himself  moved  for  compulsory  process  to  compel  the  President  tc 
come.  He  is  also  mistaken  in  stating  that  the  court  hesitated  to 
follow  up  the  subpoena  by  process  of  attachment,  and  that  not  a  step 
further  was  taken  towards  enforcing  the  doctrines  laid  down  by 
the  Chief  Justice.  Nevertheless  the  argument  that  the  President 
under  the  Constitution  and  laws  of  the  United  States  has  a  peculiar 
immunity  from  the  jurisdiction  and  process  of  the  courts  is  stated 
by  this  able  lawyer  with  great  force;  but  it  has  failed  to  convince 
the  Editor  that  his  conclusions  as  given  in  the  text  are  erroneous. 
See  In  re  Neagte,  135  U.  S.  1  (1889),  relating  to  the  assault  upon  Mr. 
Justice  Field,  and  The  State  v.  Delesdenier,  7  Texas,  95. 


li  Introduction. 

the  time  being,  or  a  return  that  he  refuses  to  produce  a 
given  document  because  the  public  interest  forbids  its 
publication, —  whether  such  a  return  is  conclusive  upon 
the  court  was,  as  I  have  said,  not  decided  by  the  Chief 
Justice  on  the  Burr  trials ;  but  if  I  may  venture  an  opinion 
on  the  point  it  is  that  such  action  on  the  part  of  the 
President  solemnly  taken  is  not  subject  to  judicial  revis 
ion,  and  obviously  it  is  not  capable  of  judicial  enforce 
ment  against  the  Executive.  If  the  President  under  the 
Constitution  is  the  sole  judge  of  what  the  public  interest 
requires  of  him,  his  judgment  ought  to  be  received  by  the 
court  without  question  or  criticism.  At  all  events  the  ut 
most  the  court  could  properly  do  would  be  to  express  its 
opinion  as  to  the  legal  rights  of  the  defendant,  cause  it  to 
be  recorded  and  officially  certified  to  the  President,  who. 
would  thus  be  compelled  to  assume  the  public  respon 
sibility  for  his  action.  Any  other  course  would  involve 
two  co-ordinate  branches  of  the  government,  each  in  its 
sphere  equal  and  independent,  in  an  unseemly  conflict, 
and  a  fruitless  conflict  so  far  as  the  court  is  concerned, 
because  of  its  inability  to  give  effect  to  its  decision  against 
the  Executive.1 

i  Chief  Justice  Taney  in  1861  dealt  with  a  somewhat  similar  situa 
tion  in  Merryman's  case.  Here  Gen.  Cadwalader,  commanding  at 
Fort  McHenry,  where  the  petitioner,  Merryman,  was  held  under  mili 
tary  arrest,  having  refused  to  obey  the  writ  of  habeas  corpus  issued 
by  the  Chief  Justice,  May  26,  1861,  an  attachment  for  contempt  was 
issued  against  the  commandant  at  the  Fort,  which  the  marshal 


John  Marshall  Memorial.  Hi 

IX. 

The  institution  of  the  day  commemorated  was  un 
doubtedly  inspired  by  Marshall's  judicial  services,  and 
mainly  by  his  vast  labors  for  more  than  a  third  of  a  cen 
tury  in  expounding  the  Constitution,  and  his  splendid 
triumph  in  establishing  it  in  the  regard  and  confidence 
not  only  of  our  own  people,  but  of  the  world.  But  it  is 
not  desirable  if  it  were  possible,  and  it  is  not  possible  if 
it  were  desired,  wholly  to  separate  the  magistrate  from 
the  man.  Curiosity  respecting  the  traits  of  character 

was  unable  to  serve.  The  Chief  Justice  said  that  the  marshal  had  the 
power  to  summon  the  posse  comitatus;  but  where,  as  in  this  case, 
the  power  refusing  obedience  was  so  notoriously  superior  to  any  the 
marshal  could  command,  he  held  that  officer  excused  from  doing 
anything  more  than  he  had  done.  "  I  have  exercised  all  the  power 
which  the  Constitution  and  laws  confer  upon  me,  but  that  power 
has  been  resisted  by  a  force  too  strong  for  me  to  overcome.  .  .  . 
I  shall,  therefore,  order  all  the  proceedings  in  this  case,  with  my 
opinion,  to  be  filed  and  recorded  in  the  court  and  direct  the  clerk  to 
transmit  a  copy  under  seal  to  the  President  of  the  United  States.  It 
will  then  remain  for  that  high  officer,  in  fulfillment  of  his  constitu 
tional  obligation  to  '  take  care  that  the  laws  be  faithfully  executed,' 
to  determine  what  measures  he  will  take  to  cause  the  civil  process 
of  the  United  States  to  be  respected  and  enforced."  This  course  was 
pursued,  but  the  rebellion  was  then  flagrant,  and  President  Lincoln 
did  nothing.  Tyler,  Memoirs  of  Taney,  420-426,  640-659;  Same  Case, 
Ex  parte  Merryman,  Taney's  Circuit  Court  Decisions,  246  (1861). 
Lord  Campbell,  in  his  life  of  Lord  Keeper  Coventry  (Lives  Lord 
Chancellors,  Chapter  LXII),  says  that  whether  the  sovereign  may 
be  examined  as  a  witness  since  there  is  no  temporal  sanction  to  the 
oath,  or  may  be  compelled  to  testify  in  any  civil  or  criminal  case 
either  on  oath  or  without  being  sworn,  is  "  a  curious  constitutional 
question  which  remains  to  this  day  undetermined."  In  a  note  to 
this  paragraph  the  author  refers  to  several  cases  in  which  the  ques 
tion  arose. 


liii  Introduction. 

and  manner  of  life  of  those  who  have  filled  a  large 
space  in  the  public  eye  is  universal  and  rational.  This 
naturally  found  recognition  in  the  celebrations  of  the 
day,  and  many  of  the  orators  dealt  with  Marshall  on  his 
personal  as  well  as  public  side.  The  addresses  reveal  the 
pleasing  fact  that  he  was  one  of  "  those  whose  hearts 
have  a  slope  to  the  southward,  and  are  open  to  the  whole 
noon  of  nature."  From  their  reading  we  rise  loving  the 
man  as  much  as  we  admire  the  judge.  On  his  death  the 
Bar  of  Virginia,  who  knew  him  so  well  as  neighbor 
and  friend,  resolved  "  that  highly  as  he  was  respected, 
he  had  the  happiness  to  be  yet  more  beloved."  Story, 
who  was  Marshall's  intimate  associate  for  a  quarter  of  a 
century,  has  left  on  record  delightful  pictures  of  the 
genuine  simplicity  of  his  nature;  his  modesty  of  demeanor, 
though  fully  conscious  of  his  own  great  powers ;  his  sense 
of  moral  obligation  and  love  of  truth ;  his  deep  tender 
ness;  his  respect  for  woman,  her  abilities,  virtues  and  ex 
cellences;  and  his  reverence  for  and  exemplification  of  all 
of  the  domestic  virtues.  In  the  anguish  of  his  sorrow  over 
the  recent  death  of  his  beloved  chief,  Story  declared  that 
Marshall's  private  character  and  virtues  gave  him  the 
highest  of  all  of  his  titles  to  affectionate  regard  and  ad 
miration.  His  noble  tribute  is  in  these  words: 

"  After  all,  whatever  may  be  Marshall's  fame  in  the 
eyes  of  the  world,  that  which,  in  a  just  sense,  was  his 
highest  glory  was  the  purity,  affectionateness,  liberality 


John  Marshall  Memorial.  liv 

and  devotedness  of  his  domestic  life.    Home,  home,  was 
the  scene  of  his  real  triumphs." 

All  that  has  since  been  learned  has  only  confirmed 
contemporary  appreciation ;  and  the  Editor  of  these  vol 
umes  has  been  anxious  that  no  fact  or  circumstance 
should  be  omitted  from  the  addresses  which  would  illus 
trate  Marshall's  private  as  well  as  public  character. 
This  is  the  more  necessary,  as  unfortunately  we  have 
comparatively  so  few  letters,  documents  or  data  from 
Marshall's  own  hand  concerning  himself;  remarkably 
few.  His  kinsman  and  life-long  opponent,  Jefferson,1 
went  through  his  long  and  active  life  pen  in  hand,  always 
thinking  and  doing,  and  always  putting  on  paper  what 
ever  he  thought  or  did,  great  or  small.  There  are  extant 
thousands  of  his  letters,  and  memoranda  unnumbered. 

1  The  relationship  between  Jefferson  and  Marshall  is  thus  stated 
by  the  Hon.  William  A.  Maury,  formerly  Assistant  Attorney-General 
of  the  United  States,  and  now  of  the  Spanish  Treaty  Claims  Com 
mission,  in  one  of  his  interesting  articles  on  Marshall,  published  in 
the  Columbian  University  Magazine,  Washington,  D.  C.,  vol.  I,  pp.  47, 
48,  December,  1901,  as  follows: 

"John  Marshall,  who  solidified  the  Union,  and  Thomas  Jefferson, 
who  headed  the  reactionary  movement  against  the  Constitution 
which  set  in  so  soon  after  its  adoption,  and  finally  culminated  in  the 
civil  war,  and  Robert  E.  Lee,  who  drew  his  sword  to  force  to  their  log 
ical  result  the  teachings  of  Jefferson's  pen,  were  all  three  descended 
from  Col.  William  Randolph  of  Turkey  Island,  the  first  of  the  name 
who  emigrated  to  Virginia,  where  he  became  the  progenitor  '  of  a 
widespread  and  numerous  race,  embracing  the  most  wealthy  fam 
ilies  and  many  of  the  most  distinguished  names  in  Virginia  history.' 
Marshall's  mother,  Mary  Keith,  Jefferson's  mother,  Jane  Randolph, 
«nd  Lee's  grandmother,  Mary  Bland,  were  all  three  granddaughters 


Iv 


Introduction. 


Not  so  in  Marshall's  case.  Yet  happily  we  have  enough 
to  delineate  the  essential  traits  of  his  character  and  the 
incidents  of  his  simple,  blameless  and  noble  life.  Excel 
lent  biographies  of  Marshall,  on  a  limited  scale,  written 
by  Magruder  and  Thayer,  for  laymen  rather  than  lawyers, 
and  valuable  articles  on  Marshall's  decisions  and  their 
influence  by  Hitchcock,  Carson,  Yan  Santvoord,  Flanders 
and  others,  written  for  lawyers  rather  than  laymen,  have 
appeared;  but  a  life  comprehensive  in  its  scope,  which 
shall  make  Marshall's  judicial  career  with  its  surround 
ings  and  accessories  its  central  feature,  give  a  critical 
estimate  of  his  great  decisions,  and  trace  their  effect  upon 
the  national  history  —  such  a  Life  yet  awaits  some  genius 

of  this  William  Randolph."  The  following  diagram  furnished  by 
Mr.  Maury  clearly  illustrates  the  relationship:  — 

Col.  Win.  Randolph,  of  Yorkshire,  England,  and  "  Turkey  Island," 
Virginia,  married  Mary,  daughter  of  Henry  and  Catherine  Isham  of 
Bermuda  Hundred,  Virginia. 


Thomas,  2nd  son 
m.  Fleming. 


Mary,  3d  child 
m.  Wm.  Keith. 


Isham,  3d  son 

m.  Jane  Randolph. 


Jane  Randolph 

4th  child 

m.  Peter  Jefferson. 


Mary  Randolph  Keith  mu^          T  L 

m.  Col.  Thos,  Marshall.  Thomas  Jefferson. 


John  Marshall. 


Elizabeth,  9th  child 
m.  Richard  Bland. 


Mary  Bland 
m.  Henry  Lee. 


Henry  Lee 

m.  Lucy  Grimes. 


Henry  Lee 

m.  Anne  Hill  Carter. 


Robert  Edward  Lee. 


John  Marshall  Memorial.  Ivi 

for  biography  with  adequate  legal  training,  having  some 
thing  of  Boswell  but  more  of  Plutarch,  who  can  worthily 
achieve  a  work  so  weighty,  difficult  and  delicate.1 

Prior  to  the  biographies  mentioned,  the  late  Edward 
J.  Phelps,  in  his  masterly  address  on  Marshall  before 
the  American  Bar  Association,  in  1879,  said:  "Lives 
enough  have  been  thought  worth  writing  that  never 
were  worth  living;  but  the  life  of  this  great  magistrate 

1  An  interesting  reminiscence  relating  to  Chief  Justice  Marshall  at 
the  January  term,  1835,  the  last  at  which  he  was  present,  to  the  place 
where  the  court  was  then  held,  and  to  the  custom  of  the  judges  on 
entering  the  court  room  to  stop  and  robe  themselves  in  the  presence 
of  the  bar  before  ascending  the  bench,  is  given  by  the  distinguished 
and  venerable  William  Allen  Butler,  his  father  being  at  that  time  the 
Attorney-General  of  the  United  States.  In  a  letter  to  the  editor, 
March  11, 1901,  Mr.  Butler,  after  referring  to  the  Albany  Marshall  Day 
celebration,  says:  "  I  saw  Chief  Justice  Marshall  during  the  last  term 
of  the  Supreme  Court  at  which  he  was  present.  I  was  a  boy  ten  years  of 
age,  but  I  well  remember  walking  up  Pennsylvania  Avenue  in  com 
pany  with  my  father  and  William  Wirt  early  in  1835,  and  going  into 
the  old  court  room,  where  the  library  now  is,  and  looking  at  the  pro 
cession  of  judges,  with  the  Chief  Justice  at  its  head,  and  being  par 
ticularly  struck  with  their  putting  on  their  gowns  in  the  court  room 
before  they  went  on  the  bench.  I  have  seen  every  Chief  Justice 
since  that  time  and  argued  cases  before  them  all,  but  none  of  them 
equaled,  in  personal  interest  and  judicial  supremacy,  their  illustri 
ous  predecessor,  whom  your  address  sets  in  so  clear  and  true  a  light." 
The  editor  in  a  note  to  Mr.  Butler  referred  from  memory  to  Virgil's 
account  of  how,  on  the  return  of  an  embassy  to  Diomede,  one  of  the 
ambassadors  exulted  in  the  thought  that  he  had  touched  the  hand 
of  the  great  Greek  hero,  remarking  that  Mr.  Butler's  visit  put  him 
almost  as  near  to  the  Great  Chief  Justice.  To  this  Mr.  Butler  made 
the  pleasant  response:  "Your  very  kind  letter  of  the  23d  ultimo 
came  as  a  very  pleasant  postea  to  the  judgment  I  had  expressed  to 
you.  I  have  looked  up  the  passage  in  the  ^neid  to  which  you  refer 
and  find  that  it  bears  out  accurately  your  version  of  the  embassy  to 


Ivii  Introduction. 

is  unwritten  still.  Perhaps  it  is  as  well  that  it  should 
be.  Time  was  needed  to  set  its  seal  upon  the  great 
lessons  he  taught;  experience  was  requisite  to  show 
what  was  the  result  of  following  and  what  the  result  of 

Diomede  and  the  report  of  one  of  the  ambassadors  that  he  had 
'touched  the  hand  by  which  Troy's  kingdom  fell.'  You  ask  whether 
my  reference  to  the  old  court  room  of  the  Supreme  Court  refers  to 
the  present  Law  Library.  This  is  the  fact.  The  Supreme  Court  sat 
in  the  present  law  library  room  until  they  took  possession  of  the 
chamber  vacated  by  the  Senate.  The  bench  was  on  the  side  of  the 
room  where  the  windows  are,  the  bar  occupying  the  space  now 
filled  by  the  book-cases  radiating  from  the  centre  space  in  front  of 
the  windows.  The  judges  came  into  court  through  the  door  by 
which  the  library  is  now  entered  and  their  gowns  were  taken  from 
a  row  of  hooks  or  pegs  just  inside  the  entrance." 

The  editor  deeply  regrets  to  record  the  lamented  death  of  Mr. 
Butler,  September  9, 1902,  at  his  residence,  Round  Oak,  Yonkers,  New 
York,  while  this  reference  to  him  was  passing  through  the  press. 

Another  interesting  reminiscence  of  Marshall  was  communicated 
to  the  editor  by  Mr.  Thomas  Marshall  Smith,  a  great-grandson  of 
the  Chief  Justice.  Mr.  Smith  says:  "Justice  Gray  wrote  me  some 
time  ago  that  he  regretted  he  did  not  know  at  the  time  he  made  his 
address  that  Chief  Justice  Marshall  had  worn  the  greater  part  of 
his  life  a  seal  with  the  motto,  *  Veritas  vincit,'  engraved  on  it.  My 
mother  tells  me,  'he  found  an  amethyst  on  his  farm,  "Oak  Hill," 
and  had  it  set,  with  the  above  motto,  which  belonged  to  his  family, 
engraved  on  it.'  A  short  time  since  my  mother  received  a  letter 
from  a  friend  in  Virginia,  in  which  she  writes:  '  Chief  Justice  Mar 
shall's  father  wrote  to  a  friend  in  Edinburgh,  asking  that  he  would 
send  over  a  tutor  for  his  many  boys.  He  said  he  must  be  a  gentle 
man,  a  college  graduate,  especially  well  versed  as  a  Greek  and  Latin 
scholar,  and  an  Episcopalian.'  The  tutor  selected  had  just  been  or 
dained  deacon.  He  came  at  once,  and  returned  later,  to  be  made 
Priest  by  the  Bishop  of  London.  She  added:  'Did  you  know  the 
tutor  referred  to  was  the  Rev.  John  Thompson,  my  great-grand 
father  ?  '  I  mention  the  above  because  there  has  been  so  much  said 
about  Marshall's  limited  education,  when  in  fact  he  had  the  very 
best  advantages  that  could  be  given  at  that  time." 


John  Marshall  Memorial.  Iviii 

departing  from  them.  Some  day  the  history  of  that  life  — 
that  grand,  pure  life  —  will  be  adequately  written.  But 
let  no  'prentice  hand  essay  the  task  1  He  should  possess 
the  grace  of  Raphael,  and  the  color  of  Titian,  who  shall 
seek  to  transfer  to  an  enduring  canvas  that  most  exqui 
site  picture  in  all  the  receding  light  of  the  days  of  the 
early  Republic."  Mr.  Phelps,  if  any  one,  possessed  these 
ideal  qualifications;  but  alas!  he  died  without  undertak 
ing  the  work  whose  requirements  he  so  well  understood 
and  so  finely  portrayed. 

In  conclusion,  the  Editor,  in  addition  to  his  thanks  ex 
pressed  in  the  body  of  the  work,  gratefully  acknowledges 
his  sense  of  special  obligation  to  the  officers  of  the  Amer 
ican  Bar  Association,  to  those  of  the  several  State  Bar 
Associations,  to  all  of  the  gentlemen  whose  addresses  are 
here  published,  and  to  MR.  THOMAS  MARSHALL  SMITH, 
MR.  JAMES  H.  MCKENNEY,  MR.  GEORGE  S.  CLAY,  MR. 
HIRAM  P.  DILLON  and  MR.  JOHN  M.  DILLON  for  many 
kind  offices  and  needed  assistance  in  the  preparation  and 
issue  of  these  volumes. 

J.  F.  D. 

KNOLLCREST, 

Far  Hills,  New  Jersey, 

December,  1902. 


JOHN  MARSHALL  MEMORIAL. 


CENTENNIAL  ANNIVERSARY  HELD  AT  WASHINGTON,  D.  G 


"  John  Marshall  Day,"  February  4,  1901,  was  appro 
priately  observed  by  exercises  held  in  the  hall  of  the 
House  of  Eepresentatives,  and  attended  by  the  President, 
the  members  of  the  Cabinet,  the  Justices  of  the  Supreme 
and  District  courts,  the  Senate  and  House  of  Represent- 
atives,  and  the  members  of  the  Bar  of  the  District  of 
Columbia,  besides  a  large  concourse  of  invited  guests. 
The  programme,  prepared  by  a  Congressional  committee 
acting  in  conjunction  with  committees  of  the  American 
Bar  Association  and  the  Bar  Association  of  this  District, 
was  characterized  by  a  dignity  and  simplicity  befitting 
the  life  of  the  great  Chief  Justice. 

Shortly  after  ten  o'clock  Representative  John  Dalzell, 
of  Pennsylvania,  called  the  assemblage  to  order.  Mr. 
Dalzell  remarked  that  it  was  appropriate  that  an  hon 
ored  successor  of  John  Marshall  should  preside,  and  he 
requested  Representatives  Grosvenor  and  Richardson  to 
escort  Chief  Justice  Fuller  to  the  rostrum,  to  whom  he 
yielded  the  gavel.  Rev.  Dr.  William  Strother  Jones,  of 
Trenton,  N".  J.,  a  great-grandson  of  Chief  Justice  Mar 
shall,  delivered  the  invocation.1 

1  This  account  of  the  exercises  held  at  the  National  Capital  is  taken 
from  THE  WASHINGTON  LAW  REPORTER,  vol.  xxix,  p.  86,  February  7, 
1901. 

VOL.  I  — 1 


John  Marshall  Memorial.  2 

Introductory  Remarks  of  Chief  Justice  Fuller  on  taking 
the  Chair. 

The  August  Term  of  the  year  of  our  Lord  eighteen  hun 
dred  of  the  Supreme  Court  of  the  United  States  had  ad 
journed  at  Philadelphia  on  the  fifteenth  day  of  August 
and  the  ensuing  term  was  fixed  by  law  to  commence  on 
the  first  Monday  of  February,  eighteen  hundred  and  one, 
the  seat  of  the  government  in  the  meantime  having  been 
transferred  to  Washington.  For  want  of  a  quorum,  how 
ever,  it  was  not  until  Wednesday,  February  fourth,  when 
John  Marshall,  who  had  been  nominated  Chief  Justice 
of  the  United  States  on  January  twentieth  by  President 
Adams,  and  commissioned  January  thirty-first,  took  his 
seat  upon  the  Bench,  that  the  first  session  of  the  court  in 
this  city  began. 

It  was  most  fitting  that  the  coming  of  the  tribunal  to 
take  its  place  here  as  an  independent,  co-ordinate  depart 
ment  of  the  government  of  a  great  people  should  be  ac 
companied  by  the  rising  of  this  majestic  luminary  in  the 
firmament  of  Jurisprudence,  to  shine  henceforth  fixed 
and  resplendent  forever. 

The  growth  of  the  Nation  during  the  passing  of  a  hun 
dred  years  has  been  celebrated  quite  as  much  perhaps  in 
felicitation  over  results  as  in  critical  analysis  of  under 
lying  causes,  but  this  day  is  dedicated  to  the  commemo 
ration  of  the  immortal  contributions  to  the  possibilities 
of  that  progress,  rendered  by  the  consummate  intellect 
ual  ability  of  a  single  individual  exerted  in  the  conscien 
tious  discharge  of  the  duties  of  merely  judicial  station. 

And  while  it  is  essential  to  the  completeness  of  any 
picture  of  Marshall's  career  that  every  part  of  his  life 


car< 
ie% 


should  be  taken  into  vie*(J  it  is  to  his  labors  in  exposition 


3  Washington— Remarks  of  Chief  Justice  Fuller. 

of  the  Constitution  that  the  mind  irresistibly  reverts  in 
recognition  of  "  the  debt  immense  of  endless  gratitude  " 
owed  to  him  by  his  country. 

The  court  in  the  eleven  years  after  its  organization, 
during  which  Jay  and  Kutledge  and  Ellsworth  — giants  in 
those  days — presided  over  its  deliberations,  had  dealt 
with  such  of  the  governmental  problems  as  arose  in  a  man 
ner  worthy  of  its  high  mission;  but  it  was  not  until  the 
questions  that  emerged  from  the  exciting  struggle  of  1800 
brought  it  into  play,  that  the  scope  of  the  judicial  power 
was  developed  and  declared,  and  its  significant  effect 
upon  the  future  of  the  country  recognized. 

As  the  Constitution  was  a  written  instrument,  com 
plete  in  itself,  and  containing  an  enumeration  of  the  pow 
ers  granted  by  the  people  to  their  government  —  a  gov 
ernment  supreme  to  the  full  extent  of  those  powers, —  it 
was  inevitable  that  the  issues  in  that  contest  (as  indeed 
in  so  many  others)  should  involve  constitutional  inter 
pretation,  and  that  finally  the  judicial  department  should 
be  called  on  to  exercise  its  jurisdiction  in  the  enforce 
ment  of  the  requirements  of  the  fundamental  law. 

The  President,  who  took  the  oath  of  office  adminis 
tered  by  the  Chief  Justice,  March  4,  1801,  in  his  inaugu 
ral,  included  among  the  essential  principles  of  our  gov 
ernment  "  the  support  of  the  State  governments  in  all 
their  rights,  as  the  most  competent  administrations  for 
our  domestic  concerns,  and  the  surest  bulwarks  against 
anti-republican  tendencies ;  "  and  "  the  preservation  of  the 
General  Government  in  its  whole  constitutional  vigor,  as 
the  sheet-anchor  of  our  peace  at  home  and  safety  abroad ; " 
but  it  was  reserved  for  the  Chiei  Justice,  as  the  organ 
of  the  court,  to  define  the  poweJJfand  rights^f  each,  in 


John  Marshall  Memorial.  4 

the  exercise  of  a  jurisdiction  which  he  regarded  as  "  in 
dispensable  to  the  preservation  of  the  Union,  and  con 
sequently  of  the  independence  and  liberty  of  these 
States." 

The  people,  in  establishing  their  future  government, 
had  assigned  to  the  different  departments  their  respect 
ive  powers,  and  prescribed  certain  limits  not  to  be  tran 
scended,  and  that  those  limits  might  not  be  mistaken  or 
disregarded,  the  fundamental  iaw  was  written.  And  as 
the  Chief  Justice  observed,  "  to  what  purpose  are  powers 
limited,  and  to  what  purpose  is  that  limitation  committed 
to  writing,  if  these  limits  may  at  any  time  be  passed  by 
those  intended  to  be  restrained?" 

The  Constitution  declared:  "This  Constitution,  and 
the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof;  and  all  treaties  made,  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land ; "  and  "  the  judicial  power 
shall  extend  to  all  cases,  in  law  or  equity,  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  au 
thority." 

The  judicial  power  was,  then,  in  a  general  sense,  co 
extensive  with  the  legislative  power,  the  executive  power, 
and  the  treaty-making  power,  and  to  the  department 
created  for  its  exercise  was  exclusively  committed  the 
ultimate  construction  of  the  Constitution,  although  that 
power  could  not  be  invoked  save  in  litigated  cases  and 
could  not  act  directly  beyond  the  rights  of  the  parties. 

And  as  the  rule  of  construction  was  merely  a  question 
of  law,  it  was  to  be,  and  it  was,  determined  and  applied 
according  to  law. 

, 


5  Washington — Remarks  of  Chief  Justice  Fuller. 

The  principles  applicable  to  the  construction  of  writ 
ten  documents  were  thoroughly  settled,  and  in  them 
selves  exceedingly  simple.  Applying  them  to  the  Con 
stitution,  the  Chief  Justice  declared  that  "  the  intention 
of  the  instrument  must  prevail;  that  this  intention  must 
be  collected  from  its  words;  that  its  words  are  to  be  un 
derstood  in  that  sense  in  which  they  are  generally  used 
by  those  for  whom  the  instrument  was  intended;  that 
its  provisions  are  neither  to  be  restricted  into  insignifi 
cance,  nor  extended  to  objects  not  comprehended  in  them, 
nor  contemplated  by  its  framers;  "  that  while  it  was  not 
open  to  dispute  that  an  "enlarged  construction  which 
would  extend  words  beyond  their  natural  and  obvious 
import,"  should  not  be  indulged  in,  it  was  not  proper,  on 
the  other  hand,  to  adopt  a  narrow  construction,  "  which 
would  deny  to  the  Government  those  powers  which  the 
words  of  the  grant,  as  usually  understood,  import,  and 
which  were  consistent  with  the  general  views  and  ob 
jects  of  the  instrument;  that  narrow  construction,  which 
would  cripple  the  Government,  and  render  it  unequal  to 
the  objects  for  which  it  is  declared  to  be  instituted,  and 
to  which  the  powers  given,  as  fairly  understood,  render 
it  competent." 

These  were  apparently  plain  legal  rules  of  construc 
tion,  yet  in  their  application  is  to  be  found  the  basis  of 
the  National  fabric ;  the  seed  of  the  National  growth ; 
the  vindication  of  a  written  form  of  Government;  and 
simple  as  they  now  appear  to  be,  their  successful  appli 
cation  then  required  the  highest  judicial  qualities. 

For  we  are  to  remember  that  there  had  been  intense 
opposition  to  the  adoption  of  the  Constitution;  that  each 
of  the  Departments  necessarily  acted  on  its  own  judg- 


John  Marshall  Memorial.  6 

ment  as  to  the  extent  of  its  powers;  and  that  the  opera 
tion  of  the  sovereignty  of  the  Nation  on  the  powers  of 
the  States  was  the  subject  of  heated  partisan  controversy. 

To  hold  the  balance  true  between  these  jarring  poles ;  to 
tread  the  straight  and  narrow  path  marked  out  by  law, 
regardless  of  political  expediency  and  party  politics  on 
the  one  hand,  and  of  jealousies  of  the  revising  power  on 
the  other;  to  reason  out  the  governing  principles  in  such 
manner  as  to  leave  the  mind  free  to  pursue  its  own  course 
without  perplexity,  and  to  commend  the  conclusions 
reached  to  the  sober  second  thought ;  these  demanded  that 
breadth  of  view,  that  power  of  generalization,  that  clear 
ness  of  expression,  that  unerring  discretion,  that  simplic 
ity  and  strength  of  character,  that  indomitable  fortitude, 
which,  combined  in  Marshall,  enabled  him  to  disclose  the 
working  lines  of  that  great  republic  whose  foundations 
the  men  of  the  Revolution  laid  in  the  principles  of  liberty 
and  self-government,  lifting  up  their  hearts  in  the  aspira 
tion  that  they  might  never  be  disturbed,  and  looking  to 
that  future  when  its  lofty  towers  would  rise  "  into  the 
midst  of  sailing  birds  and  silent  air." 

During  these  first  years  of  constitutional  development 
in  the  due  administration  of  the  law,  it  was  inevitable 
that  bitter  antagonisms  should  be  engendered,  but  their 
shafts  fell  harmless  before  that  calm  courage  of  convic 
tion  which,  perceiving  no  choice  between  dereliction  of 
duty  and  subjection  to  obloquy,  could  exclaim  with  the 
Roman  orator:  "Tamen  hoc  animo  semper  fui,  ut  invid- 
iam  virtute  partam,  gloriam,  non  invidiam,  putarem" 

And  so  the  great  Chief  Justice,  reconciling  "  the  jeal 
ousy  of  freedom  with  the  independence  of  the  judiciary," 
for  a  third  of  a  century  pursued  his  stately  way,  establish- 


7  Washington  —  Oration  of  Wayne  MacVeagh. 

ing  in  the  accomplishment  of  the  work  given  him  to  do 
those  sure  and  solid  principles  of  government  on  which 
our  constitutional  system  rests. 

The  Nation  has  entered  into  his  labors  and  may  well 
bear  witness,  as  it  does  to-day,  to  the  immortality  of  the 
fame  of  this  "  sweet  and  virtuous  soul,"  whose  powers 
were  so  admirable,  and  the  results  of  their  exercise  of 
such  transcendent  consequence. 

The  address  of  Chief  Justice  Fuller  was  heartily  ap 
plauded,  and  at  its  close  he  presented  ex- Attorney  Gen 
eral  Wayne  MacVeagh,  whose  oration  follows: 

Oration  of  Wayne  MacVeagh.1 

To-day  is  dedicated  to  the  law.  I  therefore  speak  to 
you  as  a  lawyer;  and  I  congratulate  you  that  it  is  part  of 
our  happy  fortune  that  the  occasion  which  brings  us  to 
gether  offers  in  itself  its  amplest  and  completest  justifica 
tion.  It  would  indeed  have  been  a  grave  dereliction  of 
duty  if  the  brotherhood  of  American  lawyers,  on  the 
bench  and  at  the  bar,  had  not  assembled  to  honor  with 
fitting  observances  the  centennial  anniversary  of  the  en 
trance  by  John  Marshall  into  the  office  of  Chief  Justice 
of  the  United  States. 

And  the  place  where  we  are  assembled  is  of  all  places 
the  most  fitting  for  these  ceremonies;  for  it  was  here,  in 
the  capital  of  the  country  he  loved  so  devotedly  and  served 
so  faithfully,  that  he  was  attended  by  those  patient  and 
achieving  years  during  which  his  labors  enrolled  his  name 

iThis  address  was  published  with  the  following  title:  "John  Mar 
shall:  An  address  delivered  upon  the  invitation  of  the  American  Bar 
Association  and  a  Joint  Committee  of  Congress,  in  the  hall  of  the 
House  of  Representatives,  February  4,  1901,  by  Wayne  MacVeagh." 


John  Marshall  Memorial.  8 

among  the  few  immortal  benefactors  of  mankind.  It  is 
also  eminently  fitting  that  such  an  occasion  should  be  hon 
ored  by  the  presence  of  the  Chief  Magistrate  and  the  mem 
bers  of  the  Cabinet,  whose  subjection  to  the  law  was  de 
termined  by  him ;  by  the  presence  of  members  of  that 
illustrious  tribunal  the  vast  extent  of  whose  rightful  juris 
diction  was  determined  by  him;  by  the  presence  of  dis 
tinguished  Senators  and  Representatives,  representing  in 
Congress  the  States  whose  proper  and  abiding  place  in 
our  governmental  system  was  determined  by  him ;  and 
by  the  presence  of  citizens  of  the  country  which  under 
his  forming  hand,  instead  of  becoming  a  dissoluble  con 
federacy  of  discordant  States,  became  a  great  and  indis 
soluble  nation,  endowed  with  all  the  powers  necessary 
to  enable  it  not  only  to  protect  itself  against  enemies  at 
home  or  abroad,  but  also  to  accept  and  discharge  the 
splendid  and  ennobling  mission  which  had  been  confided 
to  it  in  the  divine  purpose  for  the  education  of  the  world, 
and  which  he  recognized  when  first  of  all  men  he  spoke 
of  the  Empire  of  America  —  that  of  securing  to  the  whole 
American  continent  "government  of  the  people,  by  the 
people,  and  for  the  people." 

The  small  Virginia  hamlet  in  which  John  Marshall 
was  born  on  the  twenty-fourth  day  of  September,  1755, 
is  almost  within  sight  from  the  noble  terrace  of  the  Cap 
itol,  and,  much  as  the  world  has  changed,  that  section  of 
Virginia  has  not  very  greatly  changed  since  that  day. 
His  birth  fell  almost  half  way  between  the  opening  of  the 
seventeenth  century  and  the  opening  of  the  twentieth  — 
midway  of  the  three  centuries  which,  in  many  important 
respects,  of  all  the  centuries,  have  been  the  most  fruitful, 
the  most  interesting,  and  the  most  beneficent. 


9  Washington  —  Oration  of  Wayne  MacVeagh. 

The  first  half  of  that  stirring  period  of 

"  Change,  alarm,  surprise," 

witnessed  what  is  probably  the  most  far-reaching  and  cer 
tainly  the  most  romantic  drama  of  history  —  the  coloniza 
tion  of  America.  The  landing  at  Jamestown  had  followed 
the  dawn  of  the  seventeenth  century  by  only  seven  years, 
and  the  Pilgrims  having  landed  in  Massachusetts  in  1620 
and  William  Penn  having  landed  in  Pennsylvania  in 
1683,  it  is  reasonably  accurate  to  consider  that  the  es 
sential  and  formative  labors  of  the  first  settlers  extended 
over  and  were  comprised  within  the  hundred  and  fifty 
years  preceding  John  Marshall's  birth,  and  that  a  like 
period  of  a  hundred  and  fifty  years  extends  from  his 
birth  to  the  day  on  which  we  are  assembled  to  do  honor 
to  his  memory. 

I  know  not  how  others  may  feel,  but  I  have  never 
been  able  to  read  a  single  page  of  the  marvelous  story 
of  the  settlement  of  America  without  an  access  of  gen 
erous  enthusiasm,  and  of  seeming  to  be  lifted  into  a 
purer  and  serener  air.  The  men  engaged  in  those  trans 
forming  labors  were  fully  conscious  of  the  greatness  of 
the  work  given  them  to  do;  and  they  addressed  them 
selves  to  it  as  co-workers  with  God  for  the  advantage, 
not  only  of  themselves  and  their  children,  but  of  the 
future  generations  which  were  to  rise  up  and  call  them 
blessed,  as  age  after  age  entered  upon  its  inheritance  of 
the  free  institutions  prepared  for  it,  by  the  unceasing 
toil  and  the  unwitnessed  sacrifice,  by  the  lonely  vigil  and 
the  drear  winter,  by  the  fear  of  sudden  massacre  and  the 
absence  from  all  accustomed  joys,  by  the  unshed  tears 
and  by  the  shed  blood  of  the  first  comers  to  these  shores. 

It  is  too  often  forgotten  that  we  are  in  almost  all  es- 


John  Marshall  Memorial.  10 

sential  things  only  their  lawful  heirs,  and  such  will  be 
our  children's  children  to  the  last  syllable  of  recorded 
time.  We  sometimes  talk  with  dull  misapprehension  of 
our  inheritance,  as  if  the  mingling  here  of  the  different 
nationalities  of  the  earth  was  a  mere  accident  of  our  own 
time,  and  as  if  because  some  of  our  misfortunes  are  trace 
able  to  it,  we  are  privileged  to  deny  to  any  less  fortunate 
brother  such  opportunity  to  seek  a  home  upon  this  free 
and  bountiful  continent  as  our  ancestors  enjoyed.  The 
truth  is  that  the  citizenship  to  which  John  Marshall  was 
born,  with  all  its  far-reaching  opportunities  and  inspira 
tions,  was  due  to  just  such  mingling  of  the  blood  of  dif 
ferent  races  as  we  are  now  witnessing.  A  Jesuit  father 
is  authority  for  the  statement  that  eighteen  different 
languages  were  spoken  in  what  is  now  the  city  of  New 
York  two  centuries  ago,  and  probably  no  greater  number 
is  spoken  there  to-day;  while  as  early  as  1761  it  was  de 
clared  by  a  very  competent  authority  that  "  the  diversity 
of  peoples,  religions,  nations,  and  languages  in  America 
is  prodigious."  Certainly  the  Dutch,  the  English,  the 
French,  the  Germans,  the  Scotch,  and  the  Swedes,  Prot 
estants  and  Catholics,  were  all  self-asserting  and  aggres 
sive  agencies  in  the  era  of  our  colonization;  and  each 
stock  and  each  creed  made  contributions  of  the  greatest 
possible  value  to  the  foundations  of  the  enduring  struct 
ure  of  our  nationality.  Let  us,  therefore,  always  have 
the  faith  to  believe  that  America  is  the  heritage,  not  of 
ourselves  alone,  but  of  mankind,  destined  as  well  as  fitted 
to  receive  all  who  come  to  her,  and  able  to  ameliorate 
their  distresses,  to  diminish  their  differences,  to  cultivate 
their  self-respect,  and  to  fuse  them,  in  the  processes  of 
the  uncounted  years,  into  one  great  and  free  and  happy 
people. 


11  Washington  —  Oration  of  Wayne  MacVeagh. 

This  vast  continent  of  America  is  also  charged  and  will, 
I  believe,  always  remain  charged  with  another  mission, 
impressed  upon  it  by  the  men  who  settled  it  —  that  of 
being  the  refuge  and  the  home  of  a  true  equality  and  of 
the  republican  form  of  government.  It  was  settled 
and  civilized  and  defended  by  men  to  whom  the  idea  of 
privilege  was  abhorrent,  and  to  whom  the  sense  of  sub 
stantial  equality  of  opportunity  was  as  the  very  breath 
of  their  lives.  If  in  the  changing  circumstances  of  times 
and  seasons  any  of  the  inequalities  or  privileges  of  the 
old  world,  from  which  they  fled  to  the  solitude  of  un 
broken  forests  and  the  perils  of  savage  foes,  should  un 
happily  reappear  in  the  new  world  they  founded,  I  beg 
you  to  believe  they  will  not  long  find  shelter  here;  for 
this  entire  continent  has  been,  in  counsels  wiser  than 
ours  and  which  we  could  not  hope  to  withstand  if  we 
wished,  irrevocably  dedicated  to  the  common  brother 
hood  of  man  in  its  truest  and  broadest  sense.  M.  de 
Tocqueville  long  ago  rightly  described  the  controlling 
spirit  of  the  youthful  nation  when  he  declared  that  it 
was  "  a  manly  and  legitimate  passion  for  equality."  That 
noble  passion  is  one  of  the  most  ancient  and  most  con 
stant  forces  in  civilization,  and  it  is  necessarily  the  in 
exorable  foe  of  inequality  and  of  privilege  in  all  their 
forms.  It  has  often  been  checked,  often  thwarted,  often 
even  defeated  and  overthrown ;  but  it  has  had,  in  the 
end,  resistless  power;  and  it  has  always  advanced  to  new 
and  more  extensive  conquests.  Its  last  and  greatest  con 
quest  is  the  continent  on  which  we  live. 

To  properly  estimate  the  true  grandeur  of  character 
of  any  great  man  it  is  always  necessary  to  understand 
his  environment  and  the  spirit  of  the  age  in  which  he 
lived.  The  vibrant  and  electric  atmosphere  into  which 


John  Marshall  Memorial.  12 

John  Marshall  was  born  and  in  which  his  youth  was 
passed  was  the  inevitable  consequence  of  the  memories 
which  the  colonists  had  brought  with  them  from  the  old 
world  to  the  new,  and  of  the  elevating  experiences  of  the 
life  of  adventure,  of  courage,  of  intellectual  and  religious 
fervor  which  they  had  lived.  "Not  many  noble,  not 
many  mighty,"  were  enrolled  in  their  ranks.  They  were 
people  of  the  middle  class,  such  as  we  all  have  continued 
to  be,  and,  however  reluctant  some  of  us  may  be  to  admit 
it,  we  all  are  likely  to  remain.  They  did  not  primarily 
seek  wealth,  but  they  avoided  poverty  and  acquired  prop 
erty  by  hard  and  honest  toil.  They  came  indeed  "  out 
of  great  tribulation,"  but  often  also  out  of  great  joy  and 
buoyancy  of  spirit;  and  the  fruits  of  their  experiences 
were  visible  in  their  daily  lives,  illuminated  as  those 
lives  were  by  that  sublime  spirit  of  sacrifice  for  con 
science  sake,  which  in  so  many  of  their  old  homes  had 
"  wrought  righteousness  "  for  them  and  "  out  of  weakness 
had  made  them  strong." 

The  men  who  came  from  Sweden,  from  Holland,  from 
England,  from  France,  and  from  Germany,  differing  in 
many  respects  —  in  language,  in  habits,  in  dress,  in  man 
ners, —  were  agreed,  as  if  of  one  blood  and  one  creed,;  in 
the  underlying  principles  of  the  Reformation,  for  which 
they  and  their  fathers  had  suffered  unspeakable  afflic 
tions  ;  and  they  were  agreed  also  in  their  common  hatred 
of  all  tyranny,  whether  of  church  or  king.  They  were 
an  advance  guard  of  a  political  Renaissance  sent  to  take 
possession  of  the  new  world  and  to  plant  here  that  tree 
of  liberty  whose  leaves  should  be  "  for  the  healing  of  the 
nations." 

And  as  these  different  nationalities  were  commingled 
and  were  rapidly  being  fused  into  one  people,  the  pro- 


13  Washington  —  Oration  of  Wayne  MacVeagh. 

fessors  of  all  the  different  religious  creeds  gathered  here 
were  united  in  their  devotion  to  the  land  which  gave  to 
each  of  them  the  right  to  freedom  of  religious  worship ; 
and  when  John  Marshall  was  born  the  American  colo 
nists,  thinly  scattered  along  the  Atlantic  coast  from  Mas 
sachusetts  Bay  to  Georgia,  were  as  one  people  slowly 
marching  inland  to  take  possession  of  the  continent,  and 
to  establish  a  great  nation  resting  upon  the  sublime 
truth  —  true  yesterday,  true  to-day,  and  true  forever  — 
that  "all  men  are  created  equal,  that  they  are  endowed 
by  their  Creator  with  certain  unalienable  rights,  and  that 
among  these  are  life,  liberty  and  the  pursuit  of  hap 
piness." 

What  followed  was  as  inevitable  as  a  decree  of  fate, 
although  to  the  courtiers  of  the  old  world,  its  nobles  and 
its  kings,  the  revolt  of  the  new  world  seemed  like  a  dis 
location  of  the  order  of  nature.  To  them,  in  their  blind 
ness,  "  the  world  was  all  so  suddenly  changed,  so  much 
that  was  vigorous  was  sunk  decrepit,  so  much  that  was 
not  was  beginning  to  be.  Borne  over  the  Atlantic  to  the 
closing  ear  of  Louis,  king  by  the  grace  of  God,  what 
sounds  were  these,  new  in  our  centuries  ?  Boston  harbor 
was  black  with  unexpected  tea.  Behold  a  Pennsylva- 
nian  congress  gather;  and  ere  long  on  Bunker  Hill  democ 
racy,  announcing  in  rifle  volleys,  death- winged,  under 
her  star  banner,  that  she  was  born,  and  would  envelop 
the  whole  world."  In  truth,  nothing  in  the  evolution  of 
the  material  world  is  more  orderly  than  the  evolution  in 
history  of  the  American  Revolution  and  the  American 
Union.  They  were  the  natural  and  inevitable  results  of 
the  memories,  the  sufferings,  the  faith,  and  the  aspira 
tions  of  the  early  settlers.  The  British  Crown  lost  its 
American  colonies  not  because  of  the  stamp  act,  or  the 


John  Marshall  Memorial.  14 

tax  on  tea,  not  because  of  the  cynical  statesmanship  of 
Lord  North  or  the  immeasurable  stupidity  and  stubborn 
ness  of  the  King.  The  future  of  the  colonies  was  deter 
mined  beyond  recall  when  Luther  defied  the  papal  tyr 
anny  at  Worms ;  when  Egmont  and  Horn  were  beheaded 
at  Brussels ;  when  Hanipden  was  mortally  wounded  on 
Chalgrove  Field;  when  the  Huguenots  were  massacred 
because  they  would  not  renounce  their  faith;  when  Lord 
Baltimore  was  persecuted  for  being  a  Catholic,  and  Will 
iam  Penn  was  persecuted  for  being  a  Quaker.  The 
American  colonists  had  been  consecrated,  in  the  eternal 
counsels,  to  the  old,  undying  struggle  for  civil  and  relig 
ious  freedom  and  were  now  giving  the  breath  of  life  and 
the  spirit  of  liberty  to  the  new  nation  which  was  grow 
ing,  day  by  day,  into  shape  and  strength  under  the  im 
position  of  their  hands.  As  early  as  the  year  1765,  when 
John  Marshall  was  only  ten  years  old,  the  citizens  of  the 
county  of  Westmoreland,  where  his  father  had  been  born, 
wrote  and  signed  a  declaration  setting  forth  the  rights 
of  the  colonies.  Before  he  was  ten  years  older  he  had 
assisted  in  forming  a  company  of  volunteers  to  defend 
those  rights  by  arms,  of  which  company  he  was  ap 
pointed  a  lieutenant;  and  then  began  the  first  labors  of 
his  life,  labors  which  were  destined  to  fill  in  fullest  meas 
ure  every  obligation  of  a  patriotic  citizen,  first  as  soldier, 
then  as  statesman,  and  last,  and  crowning  all  with  illus 
trious  and  unfading  renown,  as  jurist. 

His  fcareer  as  a  soldier,  like  all  the  other  actions  of  his 
life,  was  of  the  most  creditable  character.  It  is  quite 
true,  as  Gibbon  says,  that  "  mere  physical  courage,  be 
cause  it  is  such  a  universal  possession,  is  not  a  badge  of 
excellence,  but  he  who  does  not  possess  it  is  sure  to  en 
counter  the  just  contempt  of  his  fellows."  In  the  year 


15  Washington  —  Oration  of  Wayne  MacVeagh. 

1775,  when  he  was  not  twenty  years  old,  he  walked  ten 
miles  from  his  father's  house  to  an  appointed  muster  field. 
"He  was  about  six  feet  in  height,  straight  and  rather 
slender,  with  eyes  dark  to  blackness,  beaming  with  intel 
ligence  and  good  nature.  He  wore  a  plain  blue  hunting 
shirt  and  trousers  of  the  same  material,  fringed  with 
white,  and  a  round  black  hat  with  a  bucktail  for  a  cock 
ade."  When  the  company  had  assembled  he  told  them 
he  had  come  "  to  meet  them  as  fellow-soldiers  who  were 
likely  to  be  called  on  to  defend  their  country  and  their 
rights  and  liberties  invaded  by  the  British  Crown;  that 
soldiers  were  called  for,  and  that  it  was  time  to  brighten 
up  their  fire-arms  and  learn  to  use  them  in  the  field."  It 
was  thus  early,  in  the  first  flush  of  his  youthful  vigor, 
with  hope  on  his  brow  and  love  of  country  and  of  liberty 
in  his  heart,  that  he  stepped  across  the  threshold  which 
divides  youth  from  manhood,  and  began  that  almost  un 
exampled  career  of  public  service  which  continued,  with 
ever-increasing  lustre,  for  sixty  years,  and  ended  only 
with  his  life. 

Active  military  duty  was  soon  offered  him,  and  he/ 
doubtless  accepted  it  with  that  joy  of  expected  battle 
which  is  the  common  heritage  of  all  the  fighting  races, 
and  which  only  needs  a  just  cause,  like  our  Kevolution- 
ary  struggle,  to  justify  and  sanctify  it;  but  for  its  justi 
fication  and  sanctity  such  a  cause  it  always,  and  in  all 
quarters  of  the  world,  imperatively  needs.  Lieutenant 
Marshall  was  soon  promoted  to  a  captaincy,  and  it  was 
on  the  field  of  Brandywine,  a  pastoral  scene  then  and 
now  as  beautiful  as  the  eye  ever  rested  on,  where  Lafay 
ette  first  shed  his  blood  and  "Wayne  won  his  first  laurels, 
that  John  Marshall  fought  his  first  battle.  He  also  bore 
an  honorable  part  at  Germantown;  but  it  was  only  when 


John  Marshall  Memorial.  16 

the  army  retired  to  winter  quarters  in  December,  1777, 
and  he  was  appointed  to  act  as  deputy  judge  advocate 
that  he  came  into  personal  relations  with  Washington, 
and  began  to  secure  that  large  measure  of  confidence  and 
regard  which  thereafter  steadily  increased  to  the  close 
of  Washington's  life. 

The  winter  of  1777-1778  was  one  of  the  decisive  epochs 
in  the  history  of  mankind.  Washington  commanded  but 
a  small  army,  often  in  need  of  food,  always  in  need  of 
clothing,  never  with  adequate  shelter  against  the  bitter 
cold,  never  properly  armed ;  but  those  soldiers  found  food 
and  clothing  and  shelter  and  arms  in  the  sacred  fire  of 
liberty,  which  burned  brightly  in  all  breasts.  Their  awful 
and  appalling  sufferings  and  sacrifices  were  irradiated 

with 

*  A  light  which  never  was  on  sea  or  land," 

enabling  them  to  forecast  the  future  and  to  behold,  as  in 
prophetic  vision,  their  country  taking  her  place  among 
the  independent  nations  of  the  earth  as  the  result  of  their 
courage  and  fidelity.  The  words  of  Aristotle,  which 
come  to  us  across  the  centuries,  are  true  of  every  soldier 
there  from  the  commander-in-chief  to  the  private  in  the 
ranks:  "Beauty  of  character  shines  thoroughly  when 
one  is  seen  bearing  with  patience  a  load  of  calamity,  not 
through  insensibility,  but  through  nobleness  and  great 
ness  of  heart." 

That  was  indeed  a  time  which  "  tried  men's  souls"  and 
tried,  almost  to  the  point  of  breaking,  the  great  heart  of 
him  who  bore  alone  the  responsibility,  which  he  could 
not  share  with  any  other,  for  the  success  of  the  war,  and 
the  maintaining  of  that  independence  which  had  been  so 
bravely  proclaimed.  We  now  know  something  of  the 
fortitude  Washington  displayed  in  that  long  and  trying 


17  Washington  —  Oration  of  Wayne  MacVeagh. 

winter,  and  while  we  never  can  enter  into  the  bitterness 
of  soul  he  must  have  experienced  from  the  cabals  he  dis 
covered,  the  ingratitude  he  ignored,  the  calumny  he  with 
stood,  the  sufferings  he  could  not  prevent,  we  are  sure  he 
often  rose  to  the  true  appreciation  of  the  great  work  he 
was  doing  for  us  and  for  all  men;  and  pacing  his  lonely 
chamber  when  all  the  camp  around  him  was  wrapped  in 
silence  and  in  slumber  "save  where  on  some  rampart  a 
ragged  sentinel,  crunching  the  crisp  snow  with  bleeding 
feet,  kept  watch  for  liberty,"  he  must  have  known  it  was 
ordained  that  "  the  gates  of  Hell  should  not  prevail " 
against  him,  for  that  was  the  Continental  army  and  those 
were  the  hills  of  Valley  Forge. 

Mr.  Burke  tells  us  how  an  angel,  lifting  the  curtain 
which  hid  the  future  from  the  gaze  of  the  youthful  Lord 
Bathurst,  might  have  said  to  him,  "  Young  man,  there  is 
America,  which  at  this  day  serves  for  little  more  than  to 
amuse  you  with  stories  of  savage  men  and  uncouth  man 
ners,  yet  shall  before  you  taste  death  show  itself  equal  to 
the  whole  of  that  commerce  which  now  attracts  the  envy  of 
the  world;  and  whatever  England  has  been  growing  to  in 
seventeen  hundred  years,  you  shall  see  as  much  added  by 
America  in  the  course  of  a  single  life." 

As  two  Virginian  youths  lay  sleeping  in  their  huts  that 
winter  at  Valley  Forge,  I  wonder  if  any  such  forecast  of 
their  country's  future,  or  any  forecast  of  their  own,  came 
to  them  in  their  dreams:  Of  these  youths  one  was  John 
Marshall,  who  was  destined  to  lay  broad  and  deep  the 
foundations  of  his  country's  greatness,  and  thereby  assist 
to  secure  the  glory  and  the  blessings  of  free  institutions  to 
untold  generations  of  men ;  and  the  other  was  James  Mon 
roe,  who  was  destined  to  proclaim  the  truth  that  this  whole 
American  continent,  from  end  to  end,  and  from  sea  to  sea, 
VOL.  1  —  2 


John  Marshall  Memorial.  18 

must  be  regarded  by  all  other  nations  as  dedicated  to  lib 
erty  and  to  bequeath  to  us  the  duty  of  giving  practical 
and  complete  effect  to  the  noble  and  inspiring  doctrine 
which  bears  his  name. 

From  Valley  Forge  John  Marshall  followed  the  varying 
fortunes  of  Washington's  command  through  the  year  1778 
and  on  June  sixteenth,  1779,  he  was  with  General  Wayne 
in  the  assault  and  capture  of  Stony  Point,  an  achievement 
which  Charles  Lee  declared  was  "  the  most  brilliant  in 
the  whole  course  of  the  war." 

Immediately  after  the  surrender  at  Yorktown  Mr.  Mar 
shall's  career  as  statesman  began,  for  he  had  been  pre 
viously  elected  a  member  of  the  General  Assembly  of 
Virginia,  and  his  labors  in  peace  were  governed  by  the 
same  object  which  inspired  him  as  a  soldier  —  that  of 
moulding  the  colonies  into  one  great  and  strong  republic. 
His  experience  in  the  army  of  the  evils  attendant  upon  a 
divided  authority  had  convinced  him  of  the  necessity  of 
one  general  government  over  all  the  States,  possessing 
ample  authority  to  insure  the  general  safety,  to  promote  the 
general  welfare,  and  to  perpetuate  in  peace  the  blessings 
of  liberty  secured  by  the  war.  Pie  says  he  had  imbibed 
these  sentiments  so  thoroughly  that  they  became  a  part  of 
his  being,  and  as  in  the  army  he  was  associated  "  with 
brave  men  from  different  States  who  were  risking  life 
fighting  in  a  common  cause  believed  by  them  to  be  most 
precious,  I  was  in  the  habit  of  considering  America  as  my 
country  and  Congress  as  my  government."  From  that 
habit  he  never  departed  to  the  last  hour  of  his  life. 

The  brilliancy,  the  wisdom,  and  the  enduring  value  of 
his  contributions  to  the  welfare  of  his  country  as  Chief 
Justice  have  naturally  diverted  attention  from  his  valu 
able  and  fruitful  labors  as  a  statesman,  but  those  labors 


19  Washington  —  Oration  of  Wayne  MacVeagh. 

ought  never  to  be  forgotten,  as  they  help  to  exhibit  in 
its  true  proportions  that  consistency  of  opinion  which 
made  him,  from  first  to  last,  such  a  powerful  factor  on 
the  side  of  liberty  and  Union.  He  was  re-elected  to  the 
State  legislature  in  1784  and  again  in  1787,  and  in  the 
following  year  he  was  chosen  a  member  of  the  conven 
tion  called  to  reject  or  to  ratify  the  Constitution  of  the 
United  States.  This  last  election  clearly  resulted  from 
his  personal  popularity,  as  not  only  the  State  of  Yirginia, 
but  also  the  county  of  Henrico,  which  elected  him,  was 
opposed  to  the  adoption  of  the  Constitution.  He  had  al 
ways  been  the  earnest  advocate  of  its  adoption,  and  he 
was  "eminently  fitted  by  his  character  and  temper  to 
secure  without  solicitation,  and  to  retain  without  artifice, 
the  public  esteem.  His  placid  and  genial  disposition,  his 
singular  modesty,  his  generous  heart,  his  kindly  and  un 
pretentious  manners,  the  scrupulous  respect  he  showed 
for  the  feelings  of  others,  his  freedom  from  pride  and 
affectation,  his  candor,  and  his  integrity,  conciliated  the 
confidence  and  fixed  the  regard  of  his  fellow-men." 

The  convention,  in  which  he  was  to  display  these  quali 
ties  for  the  advantage  of  his  country,  met  at  Richmond 
the  second  day  of  June,  1788,  and  presented  an  assem 
blage  of  men  rarely  if  ever  surpassed  in  the  qualities 
most  honored  in  deliberative  assemblies,  the  qualities  of 
eloquence,  experience,  and  character.  Among  its  mem 
bers  were  Patrick  Henry  and  George  Mason,  Edmund 
Pendleton  and  James  Madison,  Edmund  Randolph, 
George  Nicholas,  and  Henry  Lee.  It  was  in  such  com 
pany  that  John  Marshall,  by  the  massive  strength  of  his 
great  arguments  on  behalf  of  the  Union  and  the  Consti 
tution,  succeeded  in  securing  victory  for  them  while 


John  Marshall  Memorial.  20 

extorting  from  his  earnest  and  eloquent  opponents  ex 
traordinary  tributes  of  respect  and  regard. 

Mr.  Marshall  was,  throughout  Washington's  adminis 
tration,  its  thorough  and  earnest  supporter,  and  notwith 
standing  the  almost  universal  unpopularity  of  the  treaty 
Mr.  Jay  had  negotiated  with  England,  Mr.  Marshall  fear 
lessly  advocated  its  ratification,  demolishing,  once  for  all, 
in  a  profound  legal  argument  before  the  people  of  Rich 
mond,  the  proposition  that  the  Constitution,  in  giving 
Congress  the  power  to  regulate  commerce,  denied  to  the 
President  the  right  to  negotiate  a  commercial  treaty. 
He  was  again  elected  to  the  General  Assembly  in  1795, 
and  on  the  thirty-first  day  of  May,  1797,  was  appointed 
one  of  the  three  special  envoys  President  Adams  was 
sending  to  France  in  the  hope  of  preserving  peace  with 
that  country,  while  maintaining  the  dignity  and  honor 
of  his  own.  The  sordid  nature  of  the  negotiations  of  the 
Directory,  conducted  through  Talleyrand  and  his  agents, 
was  fully  exposed,  when  it  was  shamelessly  declared  by 
them  that  to  maintain  peace  it  was  "  necessary  to  pay 
money  —  a  great  deal  of  money,"  and  to  this  demand  the 
true  American  answer  was  given  at  the  banquet  tendered 
Mr.  Marshall  on  his  return  from  his  mission  by  members 
of  the  Congress  then  sitting  at  Philadelphia : 

"Millions  for  defense,  but  not  a  cent  for  tribute." 

His  bearing  through  all  the  painful  and  disagreeable  ex 
periences  of  this  mission  justified  the  message  Patrick 
Henry  sent  him:  "Tell  Marshall  I  love  him  because  he 
acted  as  a  republican  and  as  an  American."  Those  were 
indeed  the  two  guiding  and  controlling  convictions  of 
his  Avhole  life  —  he  was  always  an  ardent  republican 
and  he  was  always  an  ardent  American;  and  his  mas- 


21  Washington  —  Oration  of  Wayne  MacVeagh. 

terly  conduct  of  the  negotiations  with  the  Directory  is 
another  striking  instance  of  the  truth  that,  since  this 
country  became  a  nation,  no  other  country  has  been  as 
wisely  and  successfully  served  by  its  diplomatic  repre 
sentatives  as  the  United  States.  Of  Mr.  Marshall's  con 
duct  of  those  negotiations  President  Adams  declared: 
"  It  ought  to  be  marked  by  the  most  decided  approbation 
of  the  public.  He  has  raised  the  American  people  in 
their  own  esteem;  and  if  the  influence  of  truth  and  jus 
tice,  reason  and  argument,  is  not  lost  in  Europe,  he  has 
raised  the  consideration  of  the  United  States  in  that 
quarter." 

Mr.  Marshall's  next  public  service  was  as  a  member  of 
the  last  Congress  which  sat  in  Philadelphia,  meeting  in 
December,  1799,  and  which  body,  so  competent  a  judge 
as  Horace  Binney  has  declared,  "  was  perhaps  never  ex 
celled  in  the  number  of  its  accomplished  debaters  or 
in  the  spirit  for  which  they  contended  for  the  prize  of 
the  public  approbation."  In  announcing  the  death  of 
Washington,  Mr.  Marshall  seems  to  have  anticipated  in 
some  degree  the  doctrine  afterwards  associated  with  the 
name  of  President  Monroe.  He  declared  that  "  Washing 
ton  was  the  hero,  the. patriot  and  the  sage  of  America, 
and  that  more  than  any  other  agency  he  had  contributed 
to  found  this  wide-spreading  Empire,  and  to  give  to  the 
Western  World  independence  and  freedom." 

However  improbable  such  an  occurrence  may  now  ap 
pear,  it  is  undoubtedly  true  that  Mr.  Marshall  changed 
the  current  of  opinion  upon  a  grave  constitutional  ques 
tion  by  a  speech  in  Congress,  although  it  is  true  that  his 
argument  in  the  Robbins  case,  so  far  from  being  an  or 
dinary  speech  in  debate,  has  all  the  merit  and  nearly  all 
the  weight  of  a  judicial  decision.  It  separates  the  ex- 


Jofyn  Marshall  Memorial.  22 

ecutive  from  the  judicial  power  by  a  line  so  distinct  and 
a  discrimination  so  wise  that  all  men  can  understand 
and  approve  it.  He  demonstrated  that,  under  the  cir 
cumstances,  the  surrender  of  Bobbins  to  the  British  au 
thorities  was  an  act  of  political  power,  which  belonged 
to  the  executive  department  alone;  and  before  the  ses 
sion  closed  he  was  privileged  to  teach  his  associates  as 
well  as  his  successors  in  Congress,  by  a  striking  example, 
how,  when  the  convictions  of  the  individual  conscience 
conflict  with  the  behests  of  party,  a  true  patriot  will  fol 
low  the  former,  in  utter  disregard  of  party  discipline, 
and  of  possible  calamitous  consequences  to  his  future  po 
litical  advancement.  Although  a  strong  supporter  of 
President  Adams'  administration,  Mr.  Marshall  voted 
without  hesitation,  contrary  to  the  earnest  desire  of  the 
President  and  in  direct  opposition  to  all  those  with  whom 
he  was  in  general  political  accord.  Believing  that  the 
second  section  of  "The  Alien  and  Sedition  Laws"  ought 
to  be  repealed,  he  voted  accordingly,  and  it  has  long 
since  been  universally  acknowledged  that  he  was  right. 
Among  other  lessons  he  had  learned  from  Washington 
was  this:  " The  spirit  of  party  unfortunatel}7"  is  insepa 
rable  from  our  nature,  having  its  root  in  the  strongest 
passions  of  the  human  spirit,  but  in  governments  of  the 
popular  form  it  is  seen  in  its  greatest  rankness  and  is 
truly  their  worst  enemy." 

So  far  from  Mr.  Marshall's  independence  of  party 
having  estranged  President  Adams,  he  very  soon  after 
wards  appointed  him  Secretary  of  State,  and  the  duties 
of  this  important  office  he  discharged  with  the  same  wis 
dom  and  firmness  he  had  displayed  in  all  other  public 
stations.  The  right  then  asserted  by  both  France  and 
Great  Britain,  while  at  war  with  each  other,  to  interfere 


23  Washington  —  Oration  of  Wayne  MacVeagh. 

in  our  affairs  and  to  compel  us  to  ally  ourselves  with  the 
one  or  the  other  of  the  combatants,  was  denied  in  a  dis 
patch  which  will  always  hold  high  rank  among  the  im 
portant  state  papers  of  America.  He  said :  "  The  United 
States  do  not  hold  themselves  in  any  degree  responsible 
to  France  or  to  Great  Britain  for  their  negotiations  with 
one  or  the  other  of  those  powers.  The  aggressions  some 
times  of  the  one  and  sometimes  of  the  other  have  forced 
us  to  contemplate  and  prepare  for  war.  We  have  re 
pelled,  and  will  continue  to  repel,  injuries  not  doubtful 
in  their  nature  and  hostilities  not  to  be  misunderstood." 
With  this  clear  and  vigorous  statement  of  the  true  posi 
tion  of  his  country  he  closed  his  career  as  a  statesman. 

He  must  have  found  that  career  singularly  interesting 
and  fruitful.  In  the  legislature  of  his  native  State;  in  its 
constitutional  convention;  in  the  special  mission  to  the 
French  Directory;  as  a  member  of  Congress,  and  as  Sec 
retary  of  State,  he  had  been  brought  into  association  with 
almost  every  member  of  that  great  galaxy  of  statesmen 
to  whose  wisdom,  integrity  and  patriotism  we  are  indebted 
for  the  priceless  blessings  of  liberty  and  union  which  we 
now  enjoy,  and  those  associations  had  undoubtedly  broad 
ened  and  widened  and  deepened  his  opinion  of  the  true 
character  of  the  National  Government,  and  assisted  to 
give  to  his  judgments  that  stately  impress,  alike  of  con- 
sistenc}'"  and  of  conclusiveness,  which  they  maintained  to 
the  end. 

On  the  fourth  day  of  February,  1801,  just  a  hundred 
years  ago,  he  took  his  seat  as  Chief  Justice  of  the  Supreme 
Court  of  the  United  States.  Soldier  he  had  been  and 
statesman,  and  now  for  the  rest  of  his  life  he  was  dedi 
cated  to  the  administration  of  the  law.  Fortunately  he 


John  Marshall  Memorial.  24 

came  to  this  great  office,  which  is  among  the  greatest 
possible  to  be  held  by  man,  in  the  full  maturity  of  his  in 
tellectual  powers,  and  admirably  equipped  to  meet  every 
demand  which  might  be  made  upon  him.  He  was  first 
of  all  a  thorough  lawyer,  thoroughly  well  grounded  in 
legal  principles,  and  thoroughly  familiar  with  the  decis 
ions  of  the  courts  in  England  and  at  home,  and  possessed 
of  the  incalculable  advantage  of  having  tried  and  argued 
many  unimportant  as  well  as  many  important  causes;  for 
he  had  been  engaged  in  active,  laborious,  and  miscella 
neous  practice  at  the  bar  for  twenty  years.  His  public 
duties,  with  one  exception  of  his  brief  special  mission  to 
France,  had  not  withdrawn  him  from  the  scene  of  his 
professional  labors,  or  seriously  interfered  with  his  devo 
tion  to  them.  He  had  risen  rapidly  at  the  bar,  for  the 
legal  questions  then  to  be  discussed  were  novel  in  their 
character,  and  counsel  in  the  argument  of  such  causes 
were  obliged  to  reason  from  general  principles  and  seek 
to  apply  considerations  of  abstract  justice,  so  that  the 
needs  of  the  time  and  the  character  of  his  mind  were  in 
most  happy  accord.  He  had  enjoyed  the  advantage  of 
practising  for  several  years  at  the  bar  of  Fauquier  county 
and  in  the  adjacent  counties,  where  he  had  acquired  not 
only  a  considerable  practice,  but  also  that  familiarity  with 
the  different  branches  of  the  law  and  their  practical  ap 
plication  which  is  far  more  slowly  and  far  less  easily 
attained  in  a  city.  When,  therefore,  he  removed  to  Kich- 
mond  it  is  not  surprising  that  he  rapidly  advanced  to  the 
position  of  the  acknowledged  leader  of  its  bar.  The 
secret  of  his  success  was  explained  by  Mr.  Wirt:  "  This 
extraordinary  man,  without  the  aid  of  fancy,  without 
the  advantages  of  person,  voice,  attitude,  gesture,  or  any 
of  the  ornaments  of  the  orator,  deserves  to  be  considered 


25  Washington  — Oration  of  Waym  MacVeagh. 


Nfc 


ne  of  the  most  eloquent  men  in  the  world,  if  eloquence 
may  be  said  to  consist  in  seizing  the  attention  with  irre 
sistible  force  and  never  permitting  it  to  elude  the  grasp 
until  the  hearer  has  received  the  conviction  which  the 
speaker  intends.  He  possesses  one  original  and  almost 
supernatural  faculty :  the  faculty  of  developing  a  subject 
by  a  glance  of  his  mind  and  detecting  at  once  the  very 
point  on  which  every  controversy  depends." 

The  services  of  such  an  advocate  were  sure  to  be  in 
great  request,  and  the  Due  de  Liancourt, in  his  "Travels 
in  America,"  speaks  of  him  as  being  "  the  most  esteemed 
and  celebrated  counselor  "  at  the  Eichmond  bar;  and  it 
was  from  his  acknowledged  leadership  of  that  bar  that  he 
was  appointed  to  be  Chief  Justice  of  the  United  States. 

I  have  dwelt  upon  these  steps  of  his  advance  from 
his  admission  to  the  bar  in  1780  to  his  national  reputation 
as  an  eminent  lawyer  in  1801,  because  it  has  always 
seemed  to  me  there  was  danger  of  overlooking  his  rank 
at  the  bar,  at  the  time  of  his  appointment,  because  of  the 
inestimable  value  of  his  services  on  the  bench  where  for 
more  than  thirty  years  he  proclaimed  and  established  the 
true  canons  of  construction  to  be  applied  to  the  Constitu 
tion. 

It  is  hardly  possible  for  us  at  the  beginning  of  the 
century  just  opening  to  appreciate  the  difficulties  and  the 
dangers  which  confronted  the  nation  at  the  beginning  of 
the  century  which  has  just  closed.  We  are  now  secure 
of  citizenship  in  a  great,  powerful  and  free  nation,  whose 
authority  upon  all  questions  affecting  the  national  wel 
fare  is  subject  only  to  such  constitutional  limitations  as 
the  sovereign  people  have  imposed.  We  are,  in  very  sober 
truth,  rich  in  resources  beyond  the  dreams  of  any  vision 
ary,  with  all  the  material  blessings  the  heart  of  man  can 


John  Marshall  Memorial.  26 

desire,  clad  in  full  panoply  for  peace  or  war,  and  enjoy 
ing  a  moral  leadership  of  all  the  nations  of  this  vast  and 
undeveloped  continent,  which  is  destined  soon  to  be  the 
home  of  hundreds  of  millions  of  people  of  all  creeds  and 
of  all  races,  blended  and  fused  into  a  peaceful  confeder 
acy  of  American  republics.  How  different  was  jJae 
outlook  a  hundred  years  ago!  A  small  and  scattered 
population  was  then  slowly  making  its  way  from  the  At 
lantic  coast  into  the  wilderness  of  the  valley  of  the  Ohio, 
and  thereby  separating  itself  by  the  almost  impassable- 
barrier  of  the  Alleghanies  from  the  settlements  on  the 
seaboard.  The  Constitution,  as  well  as  the  Government 
created  by  it,  was  only  twelve  years  old,  and  in  that  brief 
period  eleven  amendments  of  its  provisions  had  been 
found  to  be  necessary.  A  general  distrust  existed  of  its 
wisdom,  and  in  many  States  there  was  an  active  and  bit 
ter  hostility  to  it,  magnifying  its  few  imperfections  and 
denying  its  manifold  and  transcendent  merits.  Party 
spirit,  then  .as  ever  since  our  greatest  peril,  exulted  in  the 
prospect  that  it  would  soon  be  apparent  that  the  Consti 
tution  was  incapable  of  solving  the  almost  insoluble 
problem  of  reconciling  the  rights  of  thirteen  self-govern 
ing  and  independent  communities,  each  differing  in  many 
respects  from  every  other,  with  such  sovereignty  in  the 
General  Government  as  was  indispensable  to  the  perpetu 
ity  of  the  free  institutions  confided  by  the  fathers  to  its 
shelter! ngcare,in  those  noble  and  memorable  words  graven 
by  them,  as  with  a  pen  of  iron,  over  the  entrance  to  the 
sources  of  the  fundamental  law,  and  which  cannot  be  too 
often  repeated,  in  which  they  declared  that  the  Constitu 
tion  was  "ordained  to  form  a  more  perfect  union,  estab 
lish  justice,  insure  domestic  tranquillity,  provide  for  the 


27  Washington  —  Oration  of  Wayne  MacVeagh* 

common  defense,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity." 

The  new  nation  stood  at  a  parting  of  the  ways,  divided 
as  in  twain  by  two  great  contentions,  each  supported  by 
names  of  imposing  weight  and  authority,  one  party  in 
sisting  that  the  National  Government  was  a  sovereign 
nation  created  by  the  people  of  the  United  States  and  sub 
ject  as  such  sovereign  nation  only  to  the  limitations  of 
the  Constitution, —  limitations  which  the  people  had  im 
posed  and  which  they  alone  could  alter  or  remove.  The 
other  party  insisted  that  the  National  Government  was 
merely  the  accredited  agent  of  thirteen  independent 
sovereignties,  which  had  delegated  to  such  agent  certain 
strictly  defined  powers  which  the  States  were  at  liberty 
to  abrogate  or  withdraw,  at  their  own  good  will  and 
pleasure. 

It  is  now  universally  realized  that  the  decision  of  the 
question  thus  distinctly  put  in  issue  was  one  of  the  most 
important  ever  submitted  to  human  judgment;  and  if  it 
is  regarded  as  an  accident  that  at  such  a  crisis  in  the 
history  of  free  institutions  John  Marshall  was  chosen  to  be 
Chief  Justice  of  the  Supreme  Court  of  the  United  States, 
then  chance  was  as  wise  and  far-seeing  as  any  divine 
guidance  of  a  nation  could  have  been.  It  is  true  that  it 
was  an  era  of  great  statesmen  and  of  great  lawyers,  broad- 
minded,  high-hearted  men,  true  patriots  if  ever  such  there 
were.  "We  know  them  now  possibly  better  than  if  we  had 
lived  with  them,  as  we  linger  lovingly  and  proudly  over 
the  minutest  details  of  their  daily  lives,  but  we  know  that 
among  them  all  the  fittest  man  for  the  great  and  enduring 
work  then  needing  to  be  done  was  the  man  who  was  sum 
moned  to  do  it.  Mr.  Webster  wrote  of  him  years  after 
wards,  "  I  have  never  sden  a  man  of  whose  intellect  I  have 


John  Marshall  Memorial.  28 

a  higher  opinion,"  and  his  intellect  never  served  him.  to 
better  purpose  than  when  he  declared  the  wise  and  mod 
erate  doctrine  that  the  Constitution  should  not  have  either 
a  strict  or  a  liberal  construction,  but  one  giving  the  nat 
ural  and  ordinary  effect  to  its  words.  He  said:  "The 
intention  of  the  instrument  must  prevail.  This  intention 
.>  must  be  gathered  from  its  words.  Its  words  are  to  be 
understood  in  that  sense  in  which  they  are  generally  used 
by  those  for  whom  the  instrument  was  intended,  and  those 
provisions  are  neither  to  be  restricted  into  insignificance 
nor  extended  to  objects  not  comprehended  in  them,  nor 
contemplated  by  its  framers." 

To  those  memorable  words  are  to  be  added  these  others 
equally  memorable:  "That  this  court  dares  not  usurp 
power  is  most  true.  That  this  court  dares  not  shrink  from 
its  duty  is  not  less  true;  "  and  these  declarations  guided 
him,  as  with  beacon  lights,  through  his  entire  judicial  ca 
reer.  Of  these  propositions  no  criticism  could  really  be 
offered,  nor  from  them  was  any  appeal  to  either  passion  or 
prejudice  possible.  They  enabled  the  Chief  Justice  to  rear 
upon  them  that  enduring  structure  of  the  true  meaning  of 
the  Constitution  which  is  among  the  most  priceless  posses 
sions  of  our  inheritance,  and  which  will  enable  coming 
generations  to  enjoy  our  privilege  of  living  under  a  gov 
ernment  of  liberty  regulated  by  law. 

Soon  after  Mr.  Marshall's  entrance  upon  the  duties  of 
Chief  Justice  the  Supreme  Court  was  confronted  with  one 
of  the  most  important  questions  ever  submitted  to  any 
tribunal  for  decision:  Was  the  extent  and  scope  of  the 
limitations  the  Constitution  imposed  upon  the  authority 
of  the  legislative  department  of  the  Government  of  the 
United  States  to  be  determined  by  its  judicial  depart 
ment?  Might  the  latter  declare  null  and  void,  as  in  con- 


29  Washington  —  Oration  of  Wayne  MacVeagfy. 

flict  with  such  limitations,  a  law  deliberately  enacted  by 
the  former?  Many  strong  reasons  existed  for  supposing 
this  could  not  have  been  intended.  One  was  because  all 
legislative  authority  was  expressly  vested  in  Congress. 
Another  was  because  the  members  of  Congress  repre 
sented  the  people  and  held  direct  and  explicit  mandates 
from  them,  renewed  at  briefly  recurring  intervals,  to 
enact  such  laws  as  they  judged  to  be  wise  and  necessary. 
On  the  contrary,  the  justices  of  the  Supreme  Court  were 
the  nominees  of  the  President,  and  enjoyed  tenure  of 
office  during  their  lives.  The  assertion  that  the  latter 
were  at  liberty  to  annul  and  set  aside  the  legislation  en 
acted  by  the  former  seemed  to  many  ardent  and  sincere 
patriots  a  proposition  destructive  of  the  division  of  the 
powers  of  the  government  into  three  departments  of  co 
ordinate  dignity  and  authority.  But  listen  to  the  calm 
and  resistless  strength  with  which  the  Chief  Justice  es 
tablished  on  impregnable  foundations  the  true  doctrine: 
"The  question  whether  an  act  repugnant  to  the  Consti 
tution  can  become  a  law  of  the  land  is  a  question  deeply 
interesting  to  the  United  States,  but  happily  not  of  an  in 
tricacy  proportioned  to  its  interest.  If  an  act  of  the  legis 
lature  repugnant  to  the  Constitution  is  void,  does  it  not 
withstanding  its  invalidity  bind  the  courts  and  oblige 
them  to  give  it  effect?  Or  in  other  words,  though  it  be 
not  a  law,  does  it  constitute  a  rule  as  operative  as  if  it 
was  a  law?  This  would  be  to  overthrow  in  fact  what 
was  established  in  theory  and  would  seem  at  first  an  ab 
surdity  too  gross  to  be  insisted  on.  It  shall,  however, 
receive  a  more  attentive  consideration.  It  is  emphatic 
ally  the  province  and  duty  of  the  judicial  department  to 
say  what  the  law  is.  If  two  laws  conflict  with  each  other 
the  courts  must  decide  on  the  operation  of  each.  So  if  a 


Jofyn  Marshall  Memorial.  30 

law  be  in  opposition  to  the  Constitution,  if  both  the  law 
and  Constitution  apply  to  a  particular  case,  so  that  the 
court  must  either  decide  that  case  conformably  to  the 
law  disregarding  the  Constitution,  or  conformably  to  the 
Constitution  disregarding  the  law,  the  court  must  deter 
mine  which  of  these  conflicting  rules  governs  the  case. 
That  is  of  the  very  essence  of  judicial  duty.  If  then  the 
courts  are  to  regard  the  Constitution,  and  the  Constitu 
tion  is  superior  to  any  ordinary  act  of  the  legislature,  the 
Constitution,  and  not  such  ordinary  act,  must  govern  the 
case  to  which  they  both  apply." 

In  deciding  that  the  judicial  authority  of  the  court  ex 
tended  to  the  issuing  of  process  to  the  President,  he  set 
tled  for  all  time  the  subjection  of  the  head  of  the  exec 
utive  department  to  the  law;  and  he  effectually  disposed 
of  the  argument  that  as  the  King  of  Great  Britain  was 
not  subject  to  such  process  the  President  of  the  United 
States  ought  not  to  be,  by  saying: 

"Of  the  many  points  of  difference  which  exist  between 
the  first  magistrate  of  England  and  the  first  magistrate  of 
the  United  States,  in  respect  to  the  personal  dignity  con 
ferred  on  them  by  the  Constitutions  of  their  respective 
nations,  the  court  will  only  select  two.  It  is  a  principle 
of  the  English  Constitution  that  the  .King  can  do  no 
wrong;  that  no  blame  can  be  imputed  to  him;  that  he 
cannot  be  named  in  debate.  By  the  Constitution  of  the 
United  States  the  President  as  well  as  every  other  officer 
of  the  government  may  be  impeached  and  may  be  re 
moved  from  office  for  high  crimes  and  misdemeanors. 
By  the  Constitution  of  Great  Britain  the  Crown  is  hered 
itary  and  the  monarch  can  never  be  a  subject.  By  the 
Constitution  of  the  United  States  the  President  is  elected 
from  the  mass  of  the  people,  and  on  the  expiration  of  the 


31  Washington  —  Oration  of  Wayne  Mac  Veagh. 

time  for  which  he  is  elected  he  returns  to  the  mass  of 
the  people  again." 

By  a  course  of  reasoning  equally  irresistible  he  sub 
jected  the  lawfulness  of  the  ministerial  acts  of  members 
of  the  Cabinet  to  the  decision  of  the  courts:  "The  Gov 
ernment  of  the  United  States  has  been  emphatically 
termed  a  government  of  laws  and  not  of  men.  It  will 
certainly  cease  to  secure  this  high  appellation  if  the  laws 
furnish  no  remedy  for  the  violation  of  a  vested  legal 
right.  The  very  essence  of  civil  liberty  consists  in  the 
right  of  every  individual  to  claim  the  protection  of  the 
laws  whenever  he  receives  an  injury.  One  of  the  first 
duties  of  government  is  to  afford  that  protection.  By 
the  Constitution  of  the  United  States  the  President  is  in 
vested  with  certain  important  political  powers,  in  the 
exercise  of  which  he  is  accountable  to  his  country  in  his 
political  character  and  to  his  own  conscience.  To  aid 
him  in  the  performance  of  those  duties  he  is  authorized 
to  appoint  certain  Cabinet  officers,  and  so  long  as  the 
subjects  of  their  action  are  political,  there  exists  no  power 
to  control  their  discretion,  which  is  the  discretion  of  the 
President.  But  when  Congress  imposes  upon  a  Cabinet 
officer  other  duties  and  directs  him  to  perform  certain 
acts,  when  the  rights  of  individuals  are  dependent  on  the 
performance  of  those  acts,  he  is  so  far  the  officer  of  the 
law;  is  amenable  to  the  law  for  his  conduct;  and  cannot 
at  his  discretion  sport  away  the  vested  rights  of  others." 

Mr.  Justice  Story  tells  us  that  these  epoch-making 
judgments  were  "  the  results  of  his  own  unassisted  medi 
tations."  They  established  upon  a  basis  which  can  never 
be  successfully  assailed  that  both  the  legislative  and  ex 
ecutive  departments  were  subject  to  the  law,  which  is 
the  only  enduring  basis  of  government  in  the  democratic 


John  Marshall  Memorial.  32 

ages.  If  the  law  could  lay  no  restraining  hand  upon  Con 
gress,  Congress  would  be  a  despotism.  If  the  law  could 
lay  no  restraining  hand  upon  the  President  and  the  mem 
bers  of  his  Cabinet,  they  would  be  despots.  It  is  because 
neither  the  President  nor  Congress,  nor  the  highest  nor 
the  humblest  citizen  of  the  land,  is  either  above  the  re 
straints,  or  beneath  the  protection,  of  the  law  that  ours 
is  destined  to  be  the  final  form  of  government,  as  not 
withstanding  all  its  defects  it  is  by  far  the  best  form  of 
government  under  which  men  have  ever  been  permitted 
to  live.  For  of  Jaw  in  its  widest  sense,  including  the 
processes  of  evolution,  not  only  in  the  material  universe, 
but  in  the  moral  and  spiritual  universe  as  well,  the  famil 
iar  words  of  Hooker  are  always  true :  "  There  can  be  no 
less  acknowledged  than  that  her  seat  is  the  bosom  of  God, 
her  voice  the  harmony  of  the  world.  All  things  in  heaven 
and  earth  do  her  homage,  the  very  least  as  feeling  her 
care,  and  the  greatest  as  not  exempt  from  her  power." 

The  other  labors  of  Chief  Justice  Marshall,  in  giving 
definite  form  and  meaning  to  the  provisions  of  the  Con 
stitution,  were  only  comparatively  less  difficult  and  im 
portant  ;  and  we  must  not  lessen  our  gratitude  to  him  by 
failing  to  appreciate  the  gravity  of  those  decisions  and 
their  steadily  increasing  influence  in  our  national  life^. 
\  "  We  admit,"  he  said,  "  as  all  must  admit,  that  the  pow- 
\ers  of  the  Government  are  limited  and  are  not  to  be 
transcended.  But  we  think  the  sound  construction  of 
the  Constitution  must  allow  to  the  national  legislature 
that  discretion  with  respect  to  the  means,  by  which  the 
powers  it  confers  are  to  be  carried  into  execution,  which 
will  enable  that  body  to  perform  the  high  duties  assigned 
to  it,  in  the  manner  most  beneficial  to  the  people.  Let 


33  Washington  —  Oration  of  Wayne  Mac  Veagh. 

the  end  be  legitimate,  let  it  be  within  the  scope  of  the 
Constitution,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not  prohib 
ited,  but  consist  with  the  letter  and  spirit  of  the  Constitu 
tion,  are  constitutional." 

Having  settled  the  undoubted  right  of  Congress  to  de 
termine,  in  its  unfettered  discretion,  what  means  were 
necessary  to  give  effect  to  the  powers  the  Constitution 
conferred  upon  it,  he  next  addressed  himself  to  securing 
for  the  means  thus  employed  absolute  freedom  from  in 
terference  by  the  authority  of  any  State.  He  said  that 
while  there  was  no  express  provision  on  the  subject  the 
proposition  rested  "  on  a  principle  which  so  entirely  per 
vades  the  Constitution,  is  so  intermixed  with  the  mate 
rial  which  compose  it,  so  interwoven  with  its  web,  so 
blended  with  its  texture,  as  to  be  incapable  of  being  sep 
arated  from  it  without  rending  it  into  shreds.  If  the 
States  may  tax  one  instrument  employed  by  the  Gen 
eral  Government  they  may  tax  all  the  means  employed 
by  it,  to  an  excess  which  would  defeat  all  the  ends  of 
government.  This  was  not  intended  by  the  American 
people.  They  did  not  design  to  make  their  Govern 
ment  dependent  on  the  States.  The  question  is  indeed 
a  question  of  supremacy.  The  court  has  bestowed  on 
the  subject  its  most  deliberate  consideration.  The  re- , 
suit  is  a  conviction  that  the  States  have  no  power  by 
taxation  or  otherwise  to  retard,  impede,  burden,  or  in  j 
any  manner  control  the  operation  of  the  constitutional 
laws,  enacted  by  Congress,  to  carry  into  execution  the 
powers  vested  in  the  General  Government.  This  is,  we 
think,  the  inevitable  consequence  of  that  supremacy  which 
the  Constitution  has  declared." 
VOL.  1—3 


John  Marshall  Memorial.  34 

His  next  great  step  forward  was  to  withdraw  the  ob 
ligations  of  contracts  from  the  power  of  the  State  legis 
latures  to  impair  their  validity,  and  to  place  them  also  be 
neath  the  protecting  aegis  of  the  Constitution.  He  said: 
"  This  court  can  be  insensible  neither  to  the  magnitude 
nor  to  the  delicacy  of  this  question.  The  validity  of  a 
legislative  act  is  to  be  examined,  and  the  opinion  of  the 
highest  law  tribunal  of  a  State  is  to  be  revised.  But  the 
American  people  have  said,  in  the  Constitution  of  the 
United  States,  that  no  State  shall  pass  any  law  impair 
ing  the  obligation  of  contracts.  In  the  same  instrument 
they  have  also  said  that  the  judicial  power  shall  extend 
to  all  cases,  in  law  and  equity,  arising  under  the  Consti 
tution.  On  the  judges  of  this  court  is  imposed  the  solemn 
duty  of  protecting,  from  even  legislative  violation,  those 
contracts  which  the  Constitution  of  our  country  has  placed 
beyond  legislative  control;  and,  however  irksome  the 
task  may  be,  this  is  a  duty  from  which  we  dare  not 
shrink." 

It  is  now  recognized  that  one  of  his  greatest  services  to 
his  country  was  in  withstanding  a  wave  of  great  popular 
excitement,  shared  and  fostered  by  President  Jefferson 
himself,  and  declaring  the  true  doctrine  of  the  Constitu 
tion  to  be,  that  no  man  can  be  convicted  of  treason 
against  the  United  States  unless  he  is  proven  by  the  tes 
timony  of  two  witnesses,  to  the  same  overt  act  of  levy 
ing  war  against  the  nation,  or  of  adhering  to  its  enemies. 
In  discharging  this  grave  duty  he  recognized  fully  the 
obloquy  to  which  he  was  exposing  himself.  "  No  man," 
he  said,  "  is  desirous  of  becoming  the  peculiar  subject  of 
calumny.  No  man,  might  he  let  the  bitter  cup  pass  from 
him  without  self-reproach,  would  drain  it  to  the  bottom. 


35  Washington  —  Oration  of  Wayne  Mac  Veagh. 

But  if  he  has  no  choice  in  the  case,  if  there  is  no  alterna 
tive  presented  to  him  but  a  dereliction  of  duty,  or  the 
opprobrium  of  those  who  are  denominated  the  world,  he 
merits  the  contempt  as  well  as  the  indignation  of  his 
country  who  can  hesitate  which  to  embrace." 

In  the  years  to  come  it  will  probably  be  recognized 
that  among  his  decisions  none  will  surpass  in  permanent 
material  advantage  that  decision  which  determined  that 
the  power  to  regulate  commerce  resided  exclusively  in 
'  Congress  and  must  be  kept  inviolate  from  any  intrusion 
by  the  States,  under  any  guise  whatsoever.  He  refused 
to  admit  that  any  rights  possessed  by  the  States  may  be 
used  so  as  to  obstruct  the  free  course  of  a  power  given  to 
Congress.  "  We  cannot  admit,"  he  said,  "  it  may  be  used 
so  as  to  obstruct  or  defeat  the  power  to  regulate  com 
merce.  It  has  been  observed  that  the  powers  remaining 
with  the  States  may  be  so  exercised  as  to  come  in  con 
flict  with  those  vested  in  Congress.  When  this  happens 
that  which  is  not  supreme  must  yield  to  that  which  is 
supreme.  This  great  and  universal  truth  is  inseparable 
from  the  nature  of  things,  and  the  Constitution  has  ap 
plied  it  to  the  often  interfering  powers  of  the  general 
and  state  governments  as  a  vital  principle  of  perpetual 
obligation.  No  power  of  legislation  in  the  States  can 
be  allowed  to  restrain  or  interfere  with  any  law  which 
Congress  may  constitutionally  pass, —  it  cannot  interfere 
with  any  regulation  of  commerce." 

I  have  felt  it  was  due  to  this  great  jurist  to  allow  him 
to  state  his  conclusions,  as  expounder  of  the  Constitu 
tion,  in  his  own  clear  and  persuasive  language.  For 
more  than  half  a  century  the  principles  vindicated  by 


John  Marshall  Memorial.  36 

him  in  these  decisions  "have  borne  the  keen  scrutiny  of 
an  enlightened  profession  and  the  sharp  criticism  of  able 
statesmen,  but  they  remain  unshaken.  All  the  judges 
who  concurred  in  them  have  descended  long  since  into 
honored  graves,  but  these  judgments  endure,  and  gather 
ing  vigor  from  time  and  general  consent "  have  acquired 
the  force  of  constitutional  sanctions.  It  is  not  too  much 
to  say  that  he  found  his  country  drifting  rudderless  with 
out  chart  or  compass,  and  he  left  it  with  its  course  as 
definite  and  certain  as  that  of  the  fixed  stars  in  their 
courses,  and  invested  with  all  the  sovereign  powers  nec 
essary  to  a  great  nation. 

In  these  historic  and  enduring  labors  let  us  never  forget 
that  the  court  consisting  of  himself  and  his  able,  learned, 
and  patriotic  associates  enjoyed  the  assistance  of  a  bar 
of  unusual  eloquence  and  ability.  As  we  recall  them  our 
minds  are  filled  with  admiration  of  their  great  intellect 
ual  powers  and  of  their  absolute  fidelity  to  the  court, 
which  it  was  at  once  their  privilege  and  their  duty  to  ad 
vise  and  to  instruct.  In  those  arduous  labors  of  evolving, 
year  by  year,  the  true  strength  and  grandeur  of  the  Con 
stitution,  we  must  never  forget  the  part  borne  by  the  bar,— 
among  others  by  Wirt,  and  Dallas  and  Dexter,  by  Pinkney 
and  Ogden  and  Mason,  by  Binney  and  Sergeant,  by  Liv 
ingston  and  Wheaton,  by  Martin  and  Rodney  and  Eawle, 
by  Taney  and  by  Webster;  and  the  reciprocal  confidence, 
regard,  and  affection  which  existed  between  the  bench 
and  the  bar  in  those  memorable  years  of  our  judicial  his 
tory  should  never  be  forgotten.  It  was  only  such  an  at 
mosphere  which  could  have  emboldened  Mr.  Wirt  to 
indulge  in  flights  of  imagination  when  addressing  the 
judges;  and  it  was  not  only  with  courteous  attention  but 
with  an  entire  appreciation  of  their  beauty  that  the  court 


37  Washington  —  Oration  of  Wayne  MacVeagh. 

listened  to  him  when  during  the  trial  of  Burr  he  de 
scribed,  in  his  vivid  imagery,  the  startling  change  in  the 
nature  of  Blennerhassett  from  his  not  permitting  the 
winds  of  summer  to  visit  his  wife  too  roughly  to  allowing 
her  "  to  shiver  at  midnight  on  the  banks  of  the  Ohio,  and 
mingle  her  tears  with  the  torrents  that  froze  as  they 
fell." 

The  Chief  Justice  has  himself  told  us  of  the  enjo}7ment 
of  the  court  of  Mr.  Pinkney's  argument  in  the  case  of 
the  Nereide:  "  With  a  pencil  dipped  in  the  most  vivid 
colors  and  guided  by  the  hand  of  a  master,  a  splendid 
portrait  has  been  drawn  of  a  single  figure,  composed  of 
the  most  discordant  materials  of  peace  and  war.  The 
skill  of  the  artist  was  exquisite  —  the  garb  in  which  the 
figure  was  presented  was  dazzling." 

During  Mr.  Webster's  argument  on  behalf  of  Dartmouth 
College  he  faltered  and  said :  "  It  is,  as  I  have  said,  a 
small  college  —  and  yet  there  are  those  who  love  it;" 
and  here  the  feelings  which  he  had  thus  far  succeeded  in 
keeping  down  broke  forth.  Everyone  saw  it  wras  wholly 
unpremeditated  —  a  pressure  on  his  heart  which  sought 
relief  in  tears.  "  The  court-room  during  those  two  or 
three  minutes  presented  an  extraordinary  spectacle. 
Chief  Justice  Marshall,  with  his  tall,  gaunt  figure,  bent 
over  as  if  to  catch  the  slightest  whisper.  Mr.  Justice 
Washington  also  leaned  forward  with  an  eager,  troubled 
look,  and  the  remainder  of  the  court  pressed  as  it  were 
towards  a  single  point." 

It  is  quite  apparent,  from  these  instances,  that  the  con 
ception  of  Chief  Justice  Marshall  of  the  dignity  of  his 
great  office  in  no  manner  interfered  with  his  apprecia 
tion  of  the  assistance  to  be  derived  from  the  arguments  of 
counsel,  or  of  his  enjoyment  of  their  eloquence.  His 


John  Marshall  Memorial.  38 

own  lofty  standard  of  the  judicial  character  was,  how 
ever,  never  relaxed.  In  the  closing  years  of  his  life,  as 
a  member  of  the  convention  called  to  revise  the  consti 
tution  of  his  native  State,  he  said:  "I  have  always 
thought,  from  my  earliest  youth  till  now,  that  the  great 
est  scourge  an  angry  heaven  ever  inflicted  upon  an  un 
grateful  and  a  sinning  people  was  an  ignorant,  a  corrupt 
or  a  dependent  judiciary.  Our  ancestors  thought  so,  we 
thought  so  until  very  lately,  and  I  trust  the  vote  of  this 
day  will  show  we  think  so  still,  and  that  we  will  not 
draw  down  this  curse  upon  Virginia." 

Let  us  fervently  hope  no  such  curse  may  ever  be  drawn 
down  upon  the  United  States.  In  a  popular  government 
like  ours,  resting  upon  manhood  suffrage,  the  forces  of 
the  reserve  in  the  army  of  civilization  must  always  be 
the  judicial  tribunals.  It  is  upon  them  as  our  only  refuge 
in  the  days  of  evil  fortune  that  our  rights  to  property, 
to  liberty,  and  to  life  must  in  the  last  resort  depend,  and 
as  long  as  the  plain  people  have  undiminished  confidence 
in  the  integrity  and  impartiality  of  their  judges,  those 
rights  will  be  secure,  but  no  longer. 

Shortly  before  his  death,  in  reply  to  an  address  from 
the  bar  of  Philadelphia  declaring  that  he  had  "  illumi 
nated  the  jurisprudence  of  his  country  and  enforced  with 
equal  mildness  and  firmness  its  constitutional  authority," 
the  Chief  Justice  replied,  with  his  unvarying  modesty, 
that  "  if  he  might  be  permitted  to  claim  for  himself  any 
part  of  their  approval,  it  would  be  that  he  had  never 
sought  to  enlarge  the  judicial  power  beyond  its  proper 
bounds,  nor  feared  to  carry  it  to  the  fullest  extent  that 
duty  required  "  —  thus  firmly  maintaining  to  the  end  the 
two  guiding  principles  with  which  he  began  his  judicial 
career. 


39  Washington — Oration  of  Wayne  MacVeagh. 

And  now  at  last  the  long  and  spotless  record  of  labor, 
of  honor,  and  of  life  was  completed,  and  in  Philadelphia, 
on  the  sixth  day  of  July,  1835,  John  Marshall  entered  into 
rest.  It  is  impossible  to  describe  the  impression  which 
his  death  produced.  It  was  not  that  feeling  which  the 
death  of  a  public  man  in  an  ordinary  sense  of  the  word 
produces,  which  stirred  the  hearts  of  the  people, —  "  it 
was  a  better,  a  purer  and  more  tranquil  sentiment,"  —  a 
mingled  feeling  of  gratitude  for  the  past  and  of  security 
for  the  future. 

The  bar  of  Eichmond  has  left  an  enduring  record  of 
their  appreciation  of  him,  and  of  their  veneration  for  him, 
which  seems  to  me  the  best  portrait  of  a  perfect  judge 
ever  drawn.  They  declare  that  he  was  "  never  absent 
from  the  bench  in  term  time  even  for  a  day ;  that  he  dis 
played  such  indulgence  to  counsel  and  suitors  that  every 
body's  convenience  was  consulted  but  his  own;  that  he 
possessed  a  dignity  sustained  without  effort,  and  appar 
ently  without  care  to  sustain  it,  to  which  all  men  were 
solicitous  to  pay  due  respect;  that  he  showed  such  equa 
nimity,  such  dignity  of  temper,  such  amenity  of  manners 
that  no  member  of  the  bar,  no  officer  of  the  court,  no 
juror,  no  witness,  no  suitor,  in  any  single  instance,  ever 
found  or  imagined,  in  anything  said,  or  done,  or  omitted 
by  him,  the  slightest  cause  of  offense."  They  added  that 
"  his  private  life  was  worthy  of  the  exalted  character  he 
sustained  in  public  station,  and  that  the  spotless  purity  of 
his  morals,  his  social,  gentle,  cheerful  disposition,  his 
habitual  self-denial  and  his  boundless  generosity  towards 
others,  caused  him  to  be,  highly  as  he  was  respected,  yet 
more  beloved." 

He  had  indeed  completed  the  circle  of  a  good  man's 
duties  as  husband  and  father,  as  citizen  and  soldier,  as 


John  Marshall  Memorial.  40 

statesman  and  jurist;  and  he  has  left  to  all  the  coming 
generations  of  his  countrymen  an  inspiring  example  of  a 
happy  union  of  wisdom  and  virtue  and  patriotism.  Two 
generations  of  American  citizens  have  come  and  gone 
since  the  nation  stood  by  his  open  grave,  and  if  we  have 
not  profited  as  we  ought  to  have  done  by  the  lessons  of 
his  life,  we  have  not  wholly  failed  to  realize  the  lofty 
ideals  he  cherished  for  us.  We  are  in  a  far  greater  de 
gree  than  he  foresaw  a  powerful,  prosperous  and  united 
people,  loyally  .accepting  his  construction  of  the  funda 
mental  law  as  the  source  of  the  national  life,  and  still 
venerating  the  Constitution  in  his  own  measured  words, 
as  "a  sacred  instrument; "  and  we  have  lived  to  see  dif 
fused  through  all  sections  of  our  country  and  among  all 
classes  of  our  countrymen  such  generous  measures  of 
political  equality,  of  social  freedom,  and  of  physical  com 
fort  and  well-being  as  were  never  dreamed  of  on  the  earth 
before. 

But  while  our  hearts  are  full  of  gratitude  for  these  un 
exampled  material  blessings,  let  us,  on  this  day  of  all  days, 
when  the  memories  of  the  fathers  cluster  so  closely  about 
us,  acknowledge,  as  they  always  acknowledged,  that  na 
tions  cannot  live  by  bread  alone.  It  was  because  of  such 
conviction  that  they  cherished,  and  we  have  heretofore 
cherished,  the  Christian  ideal  of  true  national  greatness; 
and  our  fidelity  to  that  ideal,  however  imperfect  it  has 
been,  entitled  us  in  some  measure  to  the  divine  blessing, 
for  having  offered  an  example  to  the  world  for  more  than 
an  entire  generation  of  how  a  nation  could  marvelously 
increase  in  wealth  and  strength  and  all  material  pros 
perity  while  living  in  peace  with  all  mankind.  And  al 
though  many  good  and  thoughtful  people  are  just  now 
greatly  troubled  at  what  seems  to  them  an  evil  promise 


41  Washington  —  Oration  of  Wayne,  MacVeagh. 

of  the  future,  we  must  never  for  a  moment,  in  dark  days 
or  in  bright,  despair  of  the  republic.  Differences  of 
opinion  may  well  exist  as  to  the  best  methods  of  dis 
charging  the  grave  and  serious  duties  unexpectedly  de 
volved  upon  us  by  a  war  begun  with  the  noble  object  of 
helping  a  struggling  people  to  secure  their  independence; 
but  let  us  trust  that  however  we  may  differ  as  to  methods 
we  all  believe  that  the  true  glory  of  America  and  her 
true  mission  in  the  new  century,  as  in  the  old,  is  what  a 
great  prelate  of  the  Catholic  Church  has  recently  de 
clared  it  to  be :  to  stand  fast  by  Christ  and  his  gospel ;  to 
cultivate  not  the  Moslem  virtues  of  war,  of  slaughter,  of 
rapine,  and  of  conquest,  but  the  Christian  virtues  of  self- 
denial  and  kindness  and  brotherly  love,  and  that  it  is  our 
mission,  not  to  harm  but  to  help  to  a  better  life  every 
fellow-creature  of  whatever  color  and  however  weak  or 
lowly;  and  then  we  may  some  day  hear  the  benediction: 
u  Inasmuch  as  ye  have  done  it  unto  one  of  the  least  of 
these  my  brethren  ye  have  done  it  unto  me." 

The  passing  years  bring  with  them  great  compensa 
tions,  and  among  them  is  a  serenity  of  judgment  which 
enables  us  to  recognize  as  literal  practical  truth  that, 
however  we  may  strive  to  persuade  ourselves  to  the  con 
trary,  no  nation  ever  has  gathered  or  ever  will  gather 
grapes  of  thorns  or  figs  from  thistles;  and,  as  the  sense 
of  separation  of  the  world  in  which  we  are  from  the 
world  whither  we  are  going  lessens  day  by  day,  we  come 
at  last  to  believe  with  a  faith  which  never  can  be  shaken 
that  the  true  mission  of  nations  as  of  men  is  to  promote 
righteousness  on  earth;  that  conferring  liberty  is  wiser 
than  making  gain ;  that  new  friends  are  better  for  us 
than  new  markets;  that  love  is  more  elevating  than 
hatred;  that  peace  is  nobler  than  war;  that  the  humblest 


John  Marshall  Memorial.  42 

human  life  is  sacred;  that  the  humblest  human  right 
should  be  respected;  and  it  is  only  by  recognizing  these 
truths,  which  can  never  fail  to  be  true,  that  our  own  be 
loved  country  can  worthily  discharge  the  sacred  mission 
confided  to  her  and  maintain  her  true  dignity  and  grand 
eur,  setting  her  feet  upon  the  shining  pathway  which 
leads  to  the  sunlit  summits  of  the  olive  mountains  and 
taking  abundant  care  that  every  human  creature  beneath 
her  starry  flag,  of  every  color  and  condition,  is  as  secure 
of  liberty,  of  justice  and  of  peace  as  in  the  Kepublic  of 
God. 

In  cherishing  these  aspirations  and  in  striving  to  realize 
them,  we  are  wholly  in  the  spirit  of  the  great  Chief  Jus 
tice  ;  and  we  can  in  no  other  way  so  effectually  honor  his 
memory  as  by  laboring  in  season  and  out  of  season  to 
make  this  whole  continent  of  America  "one  vast  and 
splendid  monument,  not  of  oppression  and  terror,  but  of 
wisdom,  of  peace  and  of  liberty,  on  which  men  may  gaze 
with  admiration  forever." 


COMMONWEALTH  OP  VIRGINIA. 

John  Marshall  Day  was  celebrated  in  Kichmond  under 
the  auspices  of  the  Virginia  State  Bar  Association  and 
the  Kichmond  City  Bar  Association.  The  principal  ex 
ercises  were  held  in  the  Academy  of  Music  at  four  o'clock 
in  the  afternoon.  A  contemporary  account  of  the  pro 
ceedings  states  that  the  stage  and  boxes  were  beautifully 
and  appropriately  decorated.  The  stars  and  stripes  and 
the  white  and  blue  of  Yirginia's  emblem  were  in  every 
available  spot  —  festooned  above  the  stage  front,  sus 
pended  at  the  rear,  draping  the  fronts  of  the  boxes.  At 
the  rear  of  the  stage  was  an  old  portrait  of  Marshall  in 
oil,  surrounded  by  the  white,  red  and  blue  of  the  national 
emblem,  at  the  top  the  coat-of-arms  of  Virginia,  flanked 
by  the  stars  and  stripes.  The  stage  was  decorated  with 
palms,  and  the  speakers'  stand  was  almost  obscured  by 
flowers. 

On  the  stage  were  many  distinguished  men.  Hon. 
Beverly  B.  Munford  presided.  On  his  right  sat  Judge 
James  Keith ;  on  his  left,  Mr.  Justice  Gray. 

The  boxes  on  the  left  of  the  stage  were  occupied  by 
the  following  descendants  of  Marshall:  Misses  Annie 
and  Emily  Harvie,  Lizzie  Archer,  Mrs.  Ellen  Barton, 
Mr.  and  Mrs.  Alex.  H.  Sands,  Mr.  and  Mrs.  R.  H.  Smith, 
Mrs.  Ellen  Wade,  Mrs.  A.  E.  Jordan,  Miss  Douthat, 
Mrs.  Landon  R.  Mason,  Miss  Nannie  B.  Norton  and 
J.  K.  M.  Newton,  Jr.  Descendants  of  Marshall  on  the 
left  were  Col.  K.  C.  Marshall,  Marshall  Norton  and 


John  Marshall  Memorial.  44 

Hon.  W.  L.  Royall,  also  Judge  James  Keith,  a  collateral 
descendant. 

Nearly  all  the  members  of  the  General  Assembly  of 
Yirginia  were  in  the  audience.  Eepresentatives  of  the 
bar  from  all  over  the  State,  as  well  as  a  very  full  repre 
sentation  from  the  Bar  Association  of  Richmond,  were 
present;  perhaps  the  ladies  formed  more  than  one-third 
of  the  audience.  The  Academy  was  crowded  to  the  gal 
lery. 

After  the  orchestra  played  "  The  Star  Spangled  Ban 
ner,"  Hon.  Beverly  B.  Munford  introduced  Rev.  Dr.  "Will 
iam  E.  Evans,  of  the  Monumental  Episcopal  Church,  who 
invoked  the  Divine  blessing.  Mr.  Munford  then  presented 
Judge  James  Keith,  President  of  the  Yirginia  Supreme 
Court  of  Appeals. 

Mr.  Munford's  Remarks. 

"We  have  assembled  at  the  call  of  the  Yirginia  State 
Bar  Association  and  the  Bar  Association  of  the  City  of 
Richmond  to  do  honor  to  the  august  memory  of  John 
Marshall,  and  to  celebrate  the  one  hundredth  anniversary 
of  his  elevation  to  the  office  of  Chief  Justice  of  the  Su 
preme  Court  of  the  United  States.  The  exalted  character 
of  the  man,  no  less  than  the  great  import  of  the  event, 
inspired  the  call,  while  the  enthusiasm  of  the  people's  re 
sponse  demonstrates  the  popular  sympathy  in  this  com 
memoration.  To-day  throughout  the  length  and  breadth 
of  this  land  a  grateful  people  takes  reckoning  of  what 
the  life  and  labors  of  John  Marshall  have  meant  to  the 
Republic. 

The  Nation  stands  radiant,  yet  awe-struck,  at  the  pros 
pect  of  its  present  powers  and  regal  responsibilities.  Be- 


45  Virginia — Mr.  Mun ford's  Remarks. 

hind  we  mark  the  path  of  our  country's  progress,  illumined 
by  the  terrors  of  its  trials  and  the  splendor  of  its  tri 
umphs.  Beyond,  stretches  the  future,  for  whose  prob 
lems  we  know  no  chart  nor  compass  save  the  principles 
and  practices  which  have  brought  the  Eepublic  in  safety 
and  honor  to  this  auspicious  hour.  Fortunate,  indeed, 
that  in  this  the  opening  year  of  the  dawning  century,  our 
people  have  been  summoned  to  study  anew  the  work  of 
the  great  Chief  Justice,  and  his  enduring  contributions 
to  the  cause  of  constitutional  liberty. 

In  the  early  days  of  the  century  just  closed,  a  great  son 
of  Massachusetts  called  this  Virginian  to  the  high  office 
of  Chief  Justice  of  the  Supreme  Court  of  .the  then  new- 
made  republic.  At  Virginia's  call  another  great  man 
from  the  land  of  the  Pilgrims  has  come  to  the  Common 
wealth  of  the  Cavaliers  to  recount  the  labors  and  triumphs 
of  her  illustrious  son.  His  presence  here  to-day  is  a  fresh 
assurance  of  the  return  of  that  fraternal  spirit  which  ani 
mated  the  people  of  these  two  great  States  during  the 
heroic  days  from  Concord  to  Yorktown.  To  present  this 
orator  we  have  most  appropriately  selected  the  highest 
judicial  officer  of  the  Commonwealth.  The  county  of 
Fauquier,  pre-eminent  in  the  annals  of  Virginia  for  men 
strong  of  mind  an  I  valiant  of  heart,  gave  to  exalted  cit 
izenship  and  jurisprudence  the  illustrious  Chief  Justice 
whose  memory  we  honor  to-day.  In  these  latter  years 
she  has  sent  forth  another  son,  James  Keith,  President  of 
Virginia's  Supreme  Court,  who  illustrates  in  his  character 
and  attainments  the  best  traditions  ot  his  county  and 
Commonwealth,  and  whom  I  now  have  the  privilege  of 
presenting  to  this  audience. 


John  Marshall  Memorial.  46 

Judge  Keith's  Address. 

The  great  Alexander  exclaimed  as  he  stood  at  the  tomb 
of  Achilles:  "  Oh,  fortunate  man!  who  found  a  Homer  as 
the  herald  of  your  heroic  deeds ! "  And  truly ;  for  had  not 
the  Iliad  survived,  the  tomb  which  held  his  body  would 
have  buried  his  very  name. 

He  whose  life  work  we  are  here  to  commemorate  has 
been  scarcely  less  happy.  To  have  borne  a  great  part  in 
one  of  the  most  stupendous  achievements  in  the  world's 
history ;  to  have  shared  in  the  formation,  influenced  the 
development  and  impressed  his  mind  and  character  upon 
the  institutions,  and  laws  of  these  United  States,  was  the 
supreme  good  fortune  and  the  transcendent  merit  of  John 
Marshall.  No  Homer,  indeed,  has  sung  his  story  in  im 
mortal  verse.  The  labor  of  the  jurist  offers  no  congenial 
theme  to  the  poet,  but  the  muse  of  history  will  find  in 
the  opinions  of  the  Supreme  Court  the  record  of  Marshall's 
work  which  has  earned  for  him  undying  fame  as  the 
"  Great  Chief  Justice  "  and  which  constitutes  a  monument 
to  his  memory  more  enduring  than  brass. 

In  life  he  was  cheered  by  the  affection  and  aided  and 
strengthened  by  the  genius  and  learning  of  a  great  son 
of  Massachusetts,  and  their  names  are  indissolubly  linked 
together  in  the  memory  of  men.  Who  can  think  of  Mar 
shall  whose  next  thought  is  not  of  Story  ?  They  labored 
together  in  faithful  and  appreciative  friendship,  and  their 
luminous  judgments  shine  upon  us  with  the  blended  light 
of  a  double  star. 

A  hundred  years  have  passed.  Time  and  fate  have  es 
tablished  and  vindicated  the  principles  for  which  they 
together  wrought,  and  to-day  another  great  son  of  the 
same  fruitful  mother,  an  illustrious  member  of  that  high 


47  Virginia — Address  of  Justice  Horace  Gray. 

tribunal,  in  whose  presence  we  seem  to  realize  the  poet's 
vision,  where 

"  Sovereign  law,  the  State's  collected  will, 
O'er  thrones  and  globes  elate 
Sits  empress,  crowning  good,  repressing  ill," 

honors  us  by  his  presence. 

O !  Fortunate  man !  I  can  but  exclaim,  who  had  Story 
as  a  friend  and  co-worker,  and  whose  career  after  so  many 
years  is  a  theme  worthy  of  Mr.  Justice  Gray,  of  Massa 
chusetts. 

Address  of  Justice  Horace  Gray.1 

Gentlemen  of  the  Bar  of  the  Commonwealth  of  Virginia, 
and  of  the  City  of  Richmond: 

One  hundred  years  ago  to-day,  the  Supreme  Court  of 
the  United  States,  after  sitting  for  a  few  years  in  Phila 
delphia,  met  for  the  first  time  in  Washington,  the  per 
manent  capital  of  the  Nation ;  and  John  Marshall,  a  citi 
zen  of  Virginia,  having  his  home  in  Richmond,  and  a 
member  of  this  bar,  took  his  seat  as  Chief  Justice  of  the 
United  States. 

In  inviting  a  citizen  of  another  ancient  Commonwealth 
to  take  part  in  your  commemoration  of  that  epoch  in  our 
national  history,  by  addressing  you  on  the  Life,  Character 
and  Influence  of  Chief  Justice  Marshall,  you  have  been 
pleased  to  mention  that  it  was  President  John  Adams,  of 
Massachusetts,  who  gave  Chief  Justice  Marshall  to  the 
Nation,  and  that  I  am  a  citizen  of  Massachusetts  and  a 
member  of  the  court  over  which  Chief  Justice  Marshall 

JThis  address  was  published  with  the  following  title:  "An  Ad 
dress  on  the  Life,  Character  and  Influence  of  Chief  Justice  Marshall, 
delivered  at  Richmond  on  the  fourth  day  of  February,  1901,  at  the 
request  of  the  State  Bar  Association  of  Virginia  and  the  Bar  As 
sociation  of  the  City  of  Richmond,  by  Horace  Gray." 


Jofyn  Marshall  Memorial.  48 

presided ;  and  to  refer  to  the  most  cordial  relations  for 
merly  existing  between  your  State  and  my  own,  now 
happily  restored,  and,  as  we  all  trust,  being  re-established 
in  a  closer  degree. 

Heartily  reciprocating  your  kindly  sentiments,  and 
deeply  touched  in  my  inmost  feelings  and  convictions, 
your  invitation  has  had  the  force  of  a  summons  that 
could  not  be  gainsaid. 

Permit  me,  in  this  connection,  to  recall  one  or  two  allu 
sions  by  Marshall  himself  to  the  sympathy  which  existed 
between  Virginia  and  Massachusetts  in  the  trying  times  of 
the  Revolutionary  War  and  of  the  Continental  Congress. 

In  the  earliest  known  speech  of  his  (as  described  by  a 
kinsman  who  heard  it),  made  in  May,  1775,  when  he  was 
under  twenty  years  old,  upon  assuming  command  as 
lieutenant  of  a  company  of  the  Virginia  militia,  he  told 
his  men  "  that  he  had  come  to  meet  them  as  fellow -sol 
diers,  who  were  likely  to  be  called  on  to  defend  their 
country,  and  their  own  rights  and  liberties  invaded  by 
the  British ;  that  there  had  been  a  battle  at  Lexington  in 
Massachusetts,  between  the  British  and  Americans,  in 
which  the  Americans  were  victorious,  but  that  more  fight 
ing  was  expected ;  that  soldiers  were  called  for,  and  that 
it  was  time  to  brighten  their  fire-arms,  and  learn  to  use 
them  in  the  field." 

Many  years  afterwards,  in  a  letter  to  a  friend  (quoted 
by  Mr.  Justice  Story,  to  whom  it  was  perhaps  addressed), 
he  wrote:  "When  I  recollect  the  wild  and  enthusiastic 
notions  with  which  my  political  opinions  of  that  day 
were  tinctured,  I  am  disposed  to  ascribe  my  devotion  to 
the  Union,  and  to  a  government  competent  to  its  preser 
vation,  at  least  as  much  to  casual  circumstances  as  to 
judgment.  I  had  grown  up  at  a  time  when  the  love  of 


49  Virginia  —  Address  of  Justice  Horace  Gray. 

the  Union,  and  the  resistance  to  the  claims  of  Great 
Britain,  were  the  inseparable  inmates  of  the  same  bosom ; 
when  patriotism  and  a  strong  fellow-feeling  with  our 
suffering  fellow-citizens  of  Boston  were  identical;  when 
the  maxim,  '  United  we  stand ;  divided  we  fall,'  was  the 
maxim  of  every  orthodox  American.  And  I  had  im 
bibed  these  sentiments  so  thoroughly,  that  they  consti 
tuted  a  part  of  my  being.  I  carried  them  with  me  into 
the  army,  where  I  found  myself  associated  with  brave 
men  from  different  States,  who  were  risking  life  and 
everything  valuable  in  a  common  cause,  believed  by  all 
to  be  most  precious;  and  where  I  was  confirmed  in  the 
habit  of  considering  America  as  my  country,  and  Con 
gress  as  my  government." 

Before  the  adoption  of  the  Constitution,  one  of  the 
chief  defects  in  the  government  of  the  United  States 
was  the  want  of  a  national  judiciary,  of  which  there  was 
no  trace  other  than  in  the  tribunals  constituted  by  the 
Continental  Congress,  under  powers  specifically  conferred 
by  the  Articles  of  Confederation,  for  the  decision  of  prize 
causes,  or  of  controversies  between  two  or  more  States. 

Among  the  objects  of  the  Constitution,  as  declared  in 
the  preamble,  the  foremost,  next  after  the  paramount  aim 
"  to  form  a  more  perfect  Union,"  is  to  "  establish  justice." 
It  ordains  that  the  judicial  power  of  the  United  States 
shall  be  vested  in  "one  Supreme  Court,"  and  in  such  in 
ferior  courts  as  Congress  may  from  time  to  time  estab 
lish;  that  the  judicial  power  shall  extend  to  "all  cases, 
in  law  and  equity,  arising,  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority,"  and  to  other  classes 
of  cases  specified;  that  the  Supreme  Court,  in  cases affect- 
VOL.  1—4 


John  Marshall  Memorial.  50 

ing  ambassadors,  public  ministers  and  consuls,  or  to  which 
a  State  shall  be  party,  shall  have  original  jurisdiction; 
and,  in  all  the  other  cases  before  mentioned,  shall  have 
appellate  jurisdiction,  with  such  exceptions  and  under 
such  regulations  as  Congress  shall  make ;  and  that  "  this 
Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything 
in  the  constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding." 

On  the  24th  of  September,  1789.  the  first  Congress 
under  the  Constitution  passed  the  Judiciary  Act,  which 
had  been  framed  by  Oliver  Ellsworth,  then  a  Senator  from 
Connecticut.  That  act  has  always  been  regarded  as  a  con 
temporaneous  construction  of  the  Constitution ;  and,  with 
some  modifications,  remains  to  this  day  the  foundation  of 
the  jurisdiction  and  practice  of  the  courts  of  the  United 
States.  It  provided  that  the  Supreme  Court  should  con 
sist  of  a  Chief  Justice,  and  of  five  Associate  Justices  who 
should  have  precedence  according  to  the  date  of  their 
commissions;  established  the  Circuit  and  District  Courts; 
defined  the  jurisdiction,  original  and  appellate,  of  all  the 
Federal  courts;  and  empowered  the  Supreme  Court  to 
reexamine  and  reverse  or  affirm,  on  writ  of  error,  any 
final  judgment  or  decree,  rendered  by  the  highest  court 
of  a  State  in  which  a  decision  in  the  case  could  be  had, 
against  a  right  claimed  under  the  Constitution,  laws  or 
treaties  of  the  United  States. 

President  Washington,  on  the  very  day  of  his  approval 
of  that  act,  nominated  John  Jay,  of  New  York,  as  Chief 
Justice;  and  John  Eutledge,  of  South  Carolina,  William 


51  Virginia — Address  of  Justice  Horace  Gray. 

Gushing,  of  Massachusetts,  Robert  H.  Harrison,  of  Mary 
land,  James  Wilson,  of  Pennsylvania,  and  John  Blair,  of 
Virginia,  as  Associate  Justices  of  the  Supreme  Court; 
and  the  nominations  were  all  confirmed  by  the  Senate  on 
the  26th  of  September.  The  commissions  of  Chief  Justice 
Jay  and  of  Mr.  Justice  Rutledge  were  dated  on  that  day, 
and  those  of  the  other  Justices  on  successive  days,  in  the 
order  above  named,  thus  determining  their  precedence. 
President  Washington,  in  a  letter  to  each  of  the  Asso 
ciate  Justices,  informing  him  of  his  appointment,  re 
marked,  "Considering  the  judicial  system  as  the  chief 
pillar  upon  which  our  National  Government  must  rest;  " 
and  in  a  letter  to  the  Chief  Justice,  inclosing  his  commis 
sion,  said  that  the  judicial  department  "  must  be  consid 
ered  as  the  keystone  of  our  political  fabric." 

During  the  first  twelve  years  of  the  Supreme  Court, 
there  were  frequent  changes  in  its  membership:  three  by 
the  appointees  preferring  high  offices  in  the  governments 
of  their  several  States;  three  others  by  resignation;  one 
by  rejection  by  the  Senate;  and  two  by  death. 

Rutledge  never  sat  in  the  Supreme  Court  as  Associate 
Justice,  and  in  1791  resigned  the  office  to  accept  that  of 
Chief  Justice  of  South  Carolina.  Harrison  declined  his  ap 
pointment,  preferring  to  become  Chancellor  of  Maryland. 
James  Iredell,  of  North  Carolina,  was  appointed  in  1790, 
in  the  stead  of  Harrison;  and  Thomas  Johnson,  of  Mary 
land,  in  1791,  in  the  place  of  Eutledge.  The  other  Asso 
ciate  Justices  before  1801  were  two  appointed  by  President 
Washington:  William  Paterson,  of  New  Jersey,  in  1793, 
in  the  place  of  Thomas  Johnson,  resigned;  and  Samuel 
Chase,  of  Maryland,  in  1796,  upon  the  resignation  of 
Blair;  and  two  appointed  by  President  John  Adams: 
Bushrod  Washington,  of  Virginia,  in  1798,  upon  the  death 


John  Marshall  Memorial.  52 

of  Wilson;  and  Alfred  Moore,  of  North  Carolina,  in  1799, 
upon  the  death  of  Iredell. 

President  Washington,  in  his  eight  years  of  office,  ap 
pointed  four  Chief  Justices  of  the  United  States:  John 
Jay  in  1789;  John  Rutledge  in  1795;  William  Gushing 
and  Oliver  Ellsworth  in  1796.  Jay  held  the  office  for 
about  five  years  and  nine  months;  and  for  the  first  six 
months  of  that  time,  by  the  President's  request,  also  acted 
as  Secretary  of  State.  Ellsworth  held  the  office  of  Chief 
Justice  a  little  more  than  four  years  and  a  half.  But 
Jay,  as  well  as  Ellsworth,  during  the  whole  of  his  last 
year,  ceased  to  perform  his  judicial  duties,  by  reason  of 
being  employed  on  a  diplomatic  mission  abroad.  Rut- 
ledge,  after  sitting  as  Chief  Justice  for  a  single  term,  was 
rejected  by  the  Senate;  and  Gushing,  though  confirmed 
by  the  Senate,  declined  the  appointment,  and  remained 
an  Associate  Justice  until  his  death  in  1810.  Ellsworth 
resigned  in  1800,  owing  to  ill  health;  and  Jay  resigned 
in  1795  to  accept  the  office  of  Governor  of  the  State  of 
New  York,  and  in  1800,  towards  the  close  of  his  second 
term  of  office  as  Governor,  being  in  a  depressed  condition 
of  health  and  spirits,  and  having  finally  determined  to 
retire  from  public  life,  declined  a  reappointment  as  Chief 
Justice,  offered  him  by  President  Adams  on  the  resigna 
tion  of  Ellsworth. 

John  Marshall,  then  Secretary  of  State,  was  nominated 
as  Chief  Justice  of  the  United  States  by  President  Adams 
on  the  20th,  confirmed  by  the  Senate  on  the  27th,  and 
commissioned  on  the  31st  of  January,  1801. 

His  characteristic  letter  of  acceptance,  addressed  to 
the  President,  and  dated  February  4,  1801,  was  in  these 
words: 

"Sir:  I  pray  you  to  accept  my  grateful  acknowledg- 


53  Virginia  —  Address  of  Justice  Horace  Gray. 

ments  for  the  honor  conferred  on  me  in  appointing  me 
Chief  Justice  of  the  United  States. 

"This  additional  and  flattering  mark  of  your  good 
opinion  has  made  an  impression  on  my  mind  which  time 
will  not  efface. 

"  I  shall  enter  immediately  on  the  duties  of  the  office, 
and  hope  never  to  give  you  occasion  to  regret  having 
made  this  appointment. 

"  With  the  most  respectful  attachment, 
"  I  am,  Sir, 

"  Your  obedient  servant, 

"J.  MARSHALL." 

On  the  same  day,  as  is  stated  on  the  record  of  the  Su 
preme  Court,  his  commission  as  Chief  Justice,  "  bearing 
date  the  31st  day  of  January,  A.  D.  1801,  and  of  the  In 
dependence  of  the  United  States  the  twenty-fifth,"  was 
"read  in  open  Court,  and  the  said  John  Marshall,  having 
taken  the  oaths  prescribed  by  law,  took  his  seat  upon  the 
Bench." 

In  speaking  of  one  who  has  been  for  a  hundred  years 
the  central  and  predominant  figure  in  American  juris 
prudence,  little  more  can  be  expected,  at  this  day,  than 
to  echo  what  has  been  better  said  by  others.  Almost  the 
whole  ground  was  covered,  long  ago,  by  Mr.  Binney,  in 
the  admirable  eulogy  delivered  before  the  Councils  of 
the  City  of  Philadelphia  on  the  24th  of  September,  1835, 
the  eightieth  anniversary  of  the  Chief  Justice's  birth,  and 
within  three  months  after  his  death;  and  by  Mr.  Justice 
Story,  in  the  interesting  essay,  first  published  in  the  North 
American  Eeview  in  1828,  and  again,  with  some  changes, 
in  the  American  National  Portrait  Gallery  in  1833,  and 
finally  developed  into  his  discourse  before  the  Suffolk 


John  Marshall  Memorial.  54 

Bar  on  the  15th  of  October,  1835,  and  containing  much 
information  derived  from  the  Chief  Justice  himself. 

In  the  researches  incited  by  your  invitation,  my  first 
and  most  important  discovery  was  a  letter  from  Chief 
Justice  Marshall,  dated  "  Richmond,  March  22d,  1818," 
and  addressed  to  "Joseph  Delaplaine,Esq.,  Philadelphia." 
Delaplaine  was  then  publishing,  in  numbers,  his  Reposi 
tory  of  the  Lives  and  Portraits  of  Distinguished  Ameri 
can  Characters,  which  was  discontinued  soon  afterwards, 
without  ever  including  Marshall.  The  letter  purports  to 
have  been  written  in  answer  to  one  "  requesting  some  ac 
count  of  my  birth,  parentage,  &c.3"  and  contains  a  short 
autobiography. 

My  earliest  knowledge  of  the  existence  of  such  an  auto 
biography  was  obtained  from  a  thin  pamphlet,  published 
at  Columbus,  Ohio,  in  1848;  found  in  an  old  bookstore  in 
Boston;  and  contain  ing  (besides  Marshall's  famous  speech 
in  Congress  on  the  case  of  Jonathan  Robbins)  only  this 
letter,  entitling  it  "  Autobiography  of  John  Marshall." 
The  internal  evidence  of  its  genuineness  is  very  strong; 
and  its  authenticity  is  put  almost  beyond  doubt  by  a  fac 
simile  (recently  shown  me  in  your  State  Library)  of  a  folio 
sheet  in  Marshall's  handwriting,  which,  although  it  con 
tains  neither  the  whole  of  the  letter,  nor  its  address,  bears 
the  same  date,  and  does  contain  the  principal  paragraph 
of  the  letter,  word  for  word,  with  the  corrections  of  the 
original  manuscript,  and  immediately  followed  by  his 
signature. 

An  autobiography  of  Marshall  is  of  so  much  interest 
that  no  apology  is  necessary  for  quoting  it  in  full.  Ex 
cept  for  one  or  two  slips  of  the  pen,  corrected  in  the  printed 
pamphlet,  it  is  as  follows: 

"  I  was  born  on  the  24th  of  September,  1755,  in  the 


55  Virginia — Address  of  Justice  Horace  Gray. 

county  of  Fauquier  in  Virginia.  My  father,  Thomas 
Marshall,  was  the  eldest  son  of  John  Marshall,  who  in 
termarried  with  a  Miss  Markham,  and  whose  parents 
migrated  from  Wales,  and  settled  in  the  county  of  West 
moreland  in  Virginia,  where  my  father  was  born.  My 
mother  was  named  Mary  Keith;  she  was  the  daughter  of 
a  clergyman  of  the  name  of  Keith  who  migrated  from 
Scotland,  and  intermarried  with  a  Miss  Randolph  on 
James  River.  I  was  educated  at  home,  under  the  direc 
tion  of  my  father,  who  was  a  planter,  but  was  often  called 
from  home  as  a  surveyor.  From  my  infancy  I  was  des 
tined  for  the  bar;  but  the  contest  between  the  mother 
country  and  her  colonies  drew  me  from  my  studies  and 
my  father  from  the  superintendence  of  them;  and  in  Sep 
tember,  1775,  I  entered  into  the  service  as  a  subaltern. 
I  continued  in  the  army  until  the  year  1781,  when,  being 
without  a  command,  I  resigned  my  commission,  in  the 
interval  between  the  invasions  of  Virginia  by  Arnold  and 
Phillips.  In  the  year  1782,  I  was  elected  into  the  legis 
lature  of  Virginia;  and  in  the  fall  session  of  the  same 
year  was  chosen  a  member  of  the  executive  council  of 
that  State.  In  January,  1783,  I  intermarried  with  Mary 
Willis  Ambler,  the  second  daughter  of  Mr.  Jacquelin 
Ambler,  then  treasurer  of  Virginia,  who  was  the  third 
son  of  Mr.  Richard  Ambler,  a  gentleman  who  had  mi 
grated  from  England,  and  settled  at  Yorktown  in  Vir 
ginia.  In  April,  1784,  I  resigned  my  seat  in  the  execu 
tive  council,  and  came  to  the  bar,  at  which  I  continued, 
declining  any  other  public  office  than  a  seat  in  the  legis 
lature,  until  the  year  1797,  when  I  was  associated  with 
General  Pinckney  and  Mr.  Gerry  in  a  mission  to  France. 
In  1798,  I  returned  to  the  United  States;  and  in  the 
spring  of  1799  was  elected  a  member  of  Congress,  a  can- 


John  Marshall  Memorial.  56 

didate  for  which,  much  against  my  inclination,  I  was  in- 
duced  to  become  by  the  request  of  General  Washington. 
At  the  close  of  the  first  session,  I  was  nominated,  first  to 
the  Department  of  War,  and  afterwards  to  that  of  State, 
which  last  office  I  accepted,  and  in  which  I  continued 
until  the  beginning  of  the  year  1801,  when  Mr.  Ellsworth 
having  resigned,  and  Mr.  Jay  having  declined  his  ap 
pointment,  I  was  nominated  to  the  office  of  Chief  Justice, 
which  I  still  hold. 

"  I  am  the  oldest  of  fifteen  children,  all  of  whom  lived 
to  be  married,  and  of  whom  nine  are  now  living.  My 
father  died  when  about  seventy-four  years  of  age;  and 
my  mother,  who  survived  him  about  seven  years,  died 
about  the  same  age.  I  do  not  recollect  all  the  societies 
to  which  I  belong,  though  they  are  very  numerous.  I 
have  written  no  book,  except  the  Life  of  Washington, 
which  was  executed  with  so  much  precipitation  as  to 
require  much  correction." 

This  brief  outline  of  an  autobiography,  besides  its  in 
trinsic  value  as  a  whole,  is  notable  in  several  particulars. 
It  shows  that  John  Marshall  was  of  Welsh,  and  of  Scotch, 
as  well  as  of  English  descent;  and  this  through  persons 
who  had  not  recently  come  over,  but  had  all  been  in  this 
country  long  enough  to  become  truly  Americans.  It  at 
tests,  over  his  own  hand,  that  he  was  educated  at  home 
under  his  father's  superintendence  and  direction,  and  was 
destined  from  infancy  for  the  bar;  and  also  that  it  was 
by  the  request  of  General  Washington,  and  much  against 
his  own  inclination,  that  he  was  induced  to  become  a 
candidate  for  Congress. 

Marshall  passed  his  boyhood  and  early  youth  in  the 
country,  in  a  healthful  climate  and  beautiful  scenery, 
fond  of  field  sports  and  athletic  exercises,  living  in  a 


57  Virginia— Address  of  Justice  Horace  Gray. 

house  containing  a  good  English  library,  the  eldest  of  a 
large  family  of  children,  under  the  guidance  and  in  the 
companionship  of  a  father  of  strong  natural  abilities,  and 
to  whom,  as  he  used  to  say,  he  owed  the  solid  foundation 
of  all  his  own  success  in  life.  As  Mr.  Binney  says:  "It 
is  the  praise  and  the  evidence  of  the  native  powers  of  his 
mind,  that  by  domestic  instruction,  and  two  years  of 
grammatical  and  classical  tuition  obtained  from  other 
sources,  Mr.  Marshall  wrought  out  in  after  life  a  compre 
hensive  mass  of  learning  both  useful  and  elegant,  which 
accomplished  him  for  every  station  that  he  filled,  and  he 
filled  the  highest  of  more  than  one  description." 

He  was  licensed  to  practice  law  in  1780,  and  soon  be 
came  one  of  the  leaders  of  the  bar  of  Virginia.  The 
Reports  of  Bushrod  Washington  and  of  Daniel  Call  show 
that  hardly  any  one  argued  so  many  cases  before  the 
Court  of  Appeals  of  the  State. 

He  was  chosen  in  the  spring  of  1782  a  representative 
in  the  legislature  of  Virginia,  and  in  the  fall  of  the  same 
year  a  member  of  the  executive  council  of  the  State.  He 
also  served  in  the  legislature  in  the  years  1784,  1787  to 
1792  and  1795. 

In  the  convention  of  Virginia  of  1788  upon  the  adop 
tion  of  the  Constitution  of  the  United  States,  Patrick 
Henry,  George  Mason  and  William  Gray  son  were  the 
principal  opponents  of  the  Constitution,  and  James  Madi 
son,  Governor  Randolph,  George  Nicholas,  Edmund  Pen- 
dleton  and  John  Marshall  its  leading  supporters;  and  at 
the  close  of  its  proceedings  Marshall  (then  only  thirty- 
three  years  of  age)  was  made  a  member,  both  of  the  com 
mittee  to  report  a  form  of  ratification,  and  of  the  com 
mittee  to  report  such  amendments  as  by  them  should  be 
deemed  necessary  to  be  recommended;  and  the  only 


John  Marshall  Memorial.  58 

other  persons  who  were  on  both  committees  were  Ran 
dolph,  Nicholas  and  Madison.  Patrick  Henry  said  of 
him  in  that  convention:  "I  have  the  highest  veneration 
and  respect  for  the  honorable  gentleman;  and  I  have 
experienced  his  candour  upon  all  occasions."  And  ten 
years  after,  when  Marshall  was  a  candidate  for  Congress, 
it  being  represented  that  Henry  was  opposed  to  him,  he 
wrote  and  published  a  letter  saying  that  he  should  give 
him  his  vote  for  Congress  preferably  to  any  citizen  of  the 
State,  General  "Washington  only  excepted. 

President  Washington  offered  Marshall  the  District- 
Attorneyship  for  the  District  of  Virginia  in  1789,  and 
the  Attorney-Generalship,  and  the  mission  to  France,  in 
1796.  President  Adams  offered  him  the  office  of  Asso 
ciate  Justice  of  the  Supreme  Court  in  1798,  upon  the 
death  of  Mr.  Justice  Wilson,  and  before  appointing  Bush- 
rod  Washington. 

In  1799  Marshall  delivered  in  the  House  of  Represent 
atives  the  speech  vindicating  the  right  and  the  duty  of 
the  President  to  surrender  Jonathan  Robbins  to  the  Brit 
ish  Government  for  trial  for  a  murder  on  a  British  ship, 
of  which  Mr.  Binney  justly  says  that  it  has  all  the  mer 
its,  and  nearly  all  the  weight,  of  a  judicial  sentence;  and 
Mr.  Justice  Story,  that  it  placed  him  at  once  in  the  front 
rank  of  constitutional  statesmen,  and  settled  then,  and 
forever,  the  points  of  national  law  upon  which  the  con 
troversy  hinged. 

Mr.  Wirt,  himself  eminent  as  a  lawyer  and  as  an  ora 
tor,  who  began  the  practice  of  the  law  but  ten  years  later 
than  Marshall,  and  who  knew  him  well,  both  at  the  bar 
and  on  the  bench,  was  so  impressed  with  his  style  of  ar 
gument,  that  he  returned  to  it  again  and  again  in  his  let- 


59  Virginia— Address  of  Justice  Horace  Gray. 

ters,  which  are  the  more  interesting  because  of  the  abso 
lute  contrast  between  the  two  men  in  that  respect. 

In  the  Letters  of  a  British  Spy,  first  published  in  1803, 
speaking  of  Marshall  at  the  bar,  Mr.  Wirt  said :  "  This 
extraordinary  man,  without  the  aid  of  fancy,  without 
the  advantages  of  person,  voice,  attitude,  gesture,  or  any 
of  the  ornaments  of  an  orator,  deserves  to  be  considered 
as  one  of  the  most  eloquent  men  in  the  world;  if  elo 
quence  may  be  said  to  consist  in  the  power  of  seizing  the 
attention  with  irresistible  force,  and  never  permitting  it 
to  elude  the  grasp  until  the  hearer  has  received  the  con 
viction  which  the  speaker  intends."  "  He  possesses  one 
original,  and  almost  supernatural,  faculty :  the  faculty  of 
developing  a  subject  by  a  single  glance  of  his  mind,  and 
detecting,  at  once,  the  very  point  on  which  every  contro 
versy  depends.  No  matter  what  the  question ;  though 
ten  times  more  knotty  than  '  the  gnarled  oak,'  the  light 
ning  of  heaven  is  not  more  rapid,  nor  more  resistless, 
than  his  astonishing  penetration.  Nor  does  the  exercise 
of  it  seem  to  cost  him  an  effort.  On  the  contrary,  it  is 
as  easy  as  vision.  I  am  persuaded  that  his  eyes  do  not 
fly  over  a  landscape,  and  take  in  its  various  objects  with 
more  promptitude  and  facility,  than  his  mind  embraces 
and  analyzes  the  most  complex  subject.  Possessing  this 
intellectual  elevation  which  enables  him  to  look  down 
and  comprehend  the  whole  ground  at  once,  he  deter 
mines  immediately,  and  without  difficulty,  on  which  side 
the  question  may  be  most  advantageously  approached 
and  assailed.  In  a  bad  cause,  his  art  consists  in  laying 
his  premises  so  remotely  from  the  point  directly  in  de 
bate,  or  else  in  terms  so  general  and  so  specious,  that 
the  hearer,  seeing  no  consequence  which  can  be  drawn 
from  them,  is  just  as  willing  to  admit  them  as  not;  but 


John  Marshall  Memorial.  60 

his  premises  once  admitted,  the  demonstration,  however 
distant,  follows  as  certainly,  as  cogently,  as  inevitably, 
as  any  demonstration  in  Euclid.  All  his  eloquence  con 
sists  in  the  apparently  deep  self -conviction  and  emphatic 
earnestness  of  his  manner;  the  correspondent  simplicity 
and  energy  of  his  style;  the  close  and  logical  connection 
of  his  thoughts;  and  the  easy  gradations  by  which  he 
opens  his  lights  on  the  attentive  minds  of  his  hearers." 

Again,  in  a  letter  of  May  6,  1806,  to  Benjamin  Ed 
wards,  a  friend  of  his  youth,  Mr.  Wirt  wrote:  "Here  is 
John  Marshall,  whose  mind  seems  to  be  little  else  than 
a  mountain  of  barren  stupendous  rocks,  an  inexhaustible 
quarry  from  which  he  draws  his  materials  and  builds  his 
fabrics,  rude  and  gothic,  but  of  such  strength  that 
neither  time  nor  force  can  beat  them  down;  a  fellow 
who  would  not  turn  off  a  single  step  from  the  right  line 
of  his  argument,  though  a  paradise  should  rise  to  tempt 
him." 

Once  more,  on  December  20, 1833,  within  two  months 
of  his  own  death,  in  a  letter  of  advice  to  a  law  student, 
he  wrote:  "Learn  (I  repeat  it)  to  think  —  to  think  deeply, 
comprehensively,  powerfully  —  and  learn  the  simple,  nerv 
ous  language  which  is  appropriate  to  that  kind  of  think 
ing.  Eead  the  legal  and  political  arguments  of  Chief 
Justice  Marshall,  and  those  of  Alexander  Hamilton, 
which  are  coming  out.  Read  them,  study  them;  and  ob 
serve  with  what  an  omnipotent  sweep  of  thought  they 
range  over  the  whole  field  of  every  subject  they  take  in 
hand  —  and  that  with  a  scythe  so  ample  and  so  keen, 
that  not  a  straw  is  left  standing  behind  them." 

Before  Marshall  became  Chief  Justice,  very  few  cases 
of  constitutional  law  were  decided  by  the  Supreme  Court. 

The  most  important  one  was  the   case  of  Chisholm 


61  Virginia  — Address  of  Justice  Horace  Gray. 

against  the  State  of  Georgia,  in  which  it  was  held  in 
1793,  by  Chief  Justice  Jay  and  his  associates,  Mr.  Justice 
Iredell  dissenting,  that  the  Supreme  Court  had  original 
jurisdiction  of  an  action  brought  against  a  State  by  a 
citizen  of  another  State.  That  decision  proceeded  upon 
the  ground  that  such  was  the  effect  of  the  Constitution, 
established  by  the  people  in  their  sovereign  capacity. 
But  it  was  inconsistent  with  the  view  which  had  been 
maintained  by  Marshall  in  the  Virginia  convention  of 
1788 ;  and  it  was  presently,  as  the  Supreme  Court  has  since 
said,  reversed  and  overruled  by  the  people  themselves, 
in  the  Eleventh  Amendment  of  the  Constitution,  which 
declared  that  "  the  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State,  or  by  citizens 
or  subjects  of  any  foreign  State." 

Two  cases  from  the  Virginia  Circuit  were  argued  at 
Philadelphia,  in  February,  1796,  before  Justices  Gushing, 
Wilson,  Paterson  and  Chase,  just  before  the  appointment 
of  Chief  Justice  Ellsworth.  In  one  of  them,Ware  against 
Hylton,  the  case  of  the  British  debts,  Marshall  was  of 
counsel  against  the  debts,  and  the  court  held  them  to  be 
protected  by  the  treaty  of  peace.  In  the  other,  Hylton 
against  the  United  States,  in  which  the  court  upheld  the 
constitutionality  of  the  carriage  tax,  Marshall  is  said  by 
Judge  Tucker  to  have  been  of  counsel  against  the  tax  in 
the  Circuit  Court;  and  Mr.  "VVirt,  in  a  letter  to  Francis  W. 
Gilmer  of  November  2,  1818,  more  than  twenty  years 
after,  spoke  of  Marshall  as  having  argued  this  case  in 
Philadelphia;  but  Mr.  Wirt  probably  had  in  mind  the 
case  of  the  British  debts. 

John  Marshall  was  Chief  Justice  of  the  United  States 


John  Marshall  Memorial.  62 

for  more  than  thirty-four  years,  from  his  taking  the  oath 
of  office  on  February  4, 1801,  to  Ijis  death  on  July  6, 1835. 

After  his  accession,  the  changes  in  the  membership  of 
the  Supreme  Court  became  much  less  frequent  thaji  they 
had  been  during  the  earlier  years  of  the  court.  Of  the 
Associate  Justices  on  the  bench  at  the  time  of  his  appoint 
ment,  Moore  continued  to  serve  for  three  years;  Paterson 
for  nearly  five  years;  Gushing  and  Chase  for  nearly 
eleven  years;  and  Bushrod  "Washington  for  nearly  twenty- 
nine  years.  William  Johnson,  appointed  on  the  resigna 
tion  of  Moore  in  1804,  served  thirty  years,  dying  within 
a  year  before  Chief  Justice  Marshall;  Livingston,  ap 
pointed  on  the  death  of  Paterson  in  1806,  served  sixteen 
years;  Todd,  appointed  in  1807  (under  an  act  of  Con 
gress  increasing  the  number  of  Associate  Justices  to  six), 
nineteen  years;  and  Duvall,  appointed  in  1811,  on  the 
death  of  Chase,  twenty-three  years,  resigning  in  Janu 
ary,  1835.  Story,  also  appointed  in  1811,  on  the  death 
of  Gushing,  served  nearly  thirty-four  years;  and  Thomp 
son,  appointed  in  1823,  on  the  death  of  Livingston, 
twenty  years.  Trimble,  appointed  in  1826,  on  the  death 
of  Todd,  died  in  little  more  than  two  years;  and  McLean, 
appointed  in  his  place  in  1829,  served  thirty-two  years. 
Justices  Story,  Thompson  and  McLean  remained  on  the 
bench  at  the  time  of  Chief  Justice  Marshall's  death. 
The  other  Associate  Justices  at  that  time  were  Baldwin, 
appointed  in  1830,  on  the  death  of  Bushrod  Washington ; 
and  Wayne,  appointed  January  5,  1835,  in  the  place  of 
William  Johnson. 

Chief  Justice  Marshall's  conduct  in  regard  to  the  ap 
pointment  of  some  of  his  associates  is  worthy  of  mention. 

On  the  death  of  Mr.  Justice  Trimble  in  1828,  President 
John  Quincy  Adams  offered  his  place  to  Henry  Clay,  who 


63  Virginia  — Address  of  Justice  Horace  Gray. 

declined  it,  and  (as  Mr.  Adams  states  in  his  diary)  "read 
me  a  letter  from  Chief  Justice  Marshall,  speaking  very 
favorably  of  J.  J.  Crittenden  to  fill  the  office  of  Judge  of 
the  Supreme  Court,  but  declining  to  write  to  me."  Crit 
tenden  was  nominated  by  President  Adams,  but  was  not 
confirmed  by  the  Senate. 

In  January,  1835,  upon  the  resignation  of  Mr.  Justice 
Duvall,  President  Jackson  nominated  Roger  B.  Taney  as 
Associate  Justice  in  his  place.  While  the  nomination 
was  pending  before  the  Senate,  Chief  Justice  Marshall 
wrote  a  note  to  Mr.  Leigh,  then  a  Senator  from  Virginia, 
in  these  terms:  "  If  you  have  not  made  up  jour  mind  on 
the  nomination  of  Mr.  Taney,  I  have  received  some  in 
formation  in  his  favor  which  I  would  wish  to  communi 
cate."  Taney's  nomination  as  Associate  Justice  was  in 
definitely  postponed  by  the  Senate;  but  within  a  year 
afterwards,  upon  the  death  of  Chief  Justice  Marshall,  he 
was  nominated  and  confirmed  as  Chief  Justice  of  the 
United  States. 

Before  Marshall's  appointment,  the  practice  appears  to 
have  been  for  all  the  justices  to  deliver  their  opinions  seri 
atim  —  a  practice  which  tends  to  bring  into  prominence 
the  subordinate  points  of  view  in  which  they  differ,  and  to 
obscure  the  principal  point  on  which  they  agree ;  and, 
while  it  sometimes  makes  the  report  of  the  case  more  in 
teresting,  tends  to  impair  its  weight  as  a  precedent  for  the 
determination  of  future  controversies.  Under  Marshall, 
all  subordinate  differences  seem  to  have  been  settled  in 
conference,  or  at  any  rate  less  often  displayed  to  the  pub 
lic;  and  the  opinion  of  the  court  was  usually  delivered  by 
one  justice,  and  in  the  majority  of  important,  and  espe 
cially  of  constitutional  cases,  by  Marshall  himself.  During 
his  time  there  were  few  dissenting  opinions. 


John  Marshall  Memorial.  64 

The  only  constitutional  case  in  which  Chief  Justice 
Marshall  dissented  from  the  judgment  of  the  court  was 
Ogden  against  Saunders  in  1827,  which  was  decided  by  a 
bare  majority  of  the  court  against  the  opinion  of  Mar 
shall,  Duvall  and  Story.  But  in  Boyle  against  Zacharie 
in  1832,  notwithstanding  a  change  in  the  membership  of 
the  court,  Marshall  declared  that  the  principles  estab 
lished  in  the  former  opinion  were  to  be  considered  no 
longer  open  for  controversy. 

Chief  Justice  .Marshall,  as  appears  by  letters  from  him 
to  his  associates  on  April  18,  1802,  was  originally  of 
opinion  that  the  Justices  of  the  Supreme  Court  could 
not  hold  Circuit  Courts  without  distinct  commissions  ag 
circuit  judges.  But  in  Stuart  against  Laird  in  1803,  ap 
parently  deferring  to  the  opinions  of  his  associates,  he 
acted  as  circuit  judge;  and  the  Supreme  Court,  in  an 
opinion  delivered  by  Mr.  Justice  Paterson,  affirmed  his 
judgment,  upon  the  ground  that  practice  and  acquies 
cence  for  several  years,  commencing  with  the  organiza 
tion  of  the  judicial  system,  had  fixed  the  construction 
beyond  dispute. 

Marshall's  judicial  demeanor  is  best  stated  in  the  words 
of  an  eye-witness.  Mr.  Binney,  who  had  been  admitted 
to  the  bar  of  the  Supreme  Court  in  1809,  and  who  had 
often  practiced  before  him,  tells  us : 

"  He  was  endued  by  nature  with  a  patience  that  was 
never  surpassed  — patience  to  hear  that  which  he  knew 
already,  that  which  he  disapproved,  that  which  ques 
tioned  himself.  When  he  ceased  to  hear,  it  was  not  be 
cause  his  patience  was  exhausted,  but  because  it  ceased 
to  be  a  virtue. 

"  His  carriage  in  the  discharge  of  his  judicial  business 
was  faultless.  Whether  the  argument  was  animated  or 


65  Virginia — Address  of  Justice  Horace  Gray. 

dull,  instructive  or  superficial,  the  regard  of  his  expres 
sive  eye  was  an  assurance  that  nothing  that  ought  to 
affect  the  cause  was  lost  by  inattention  or  indifference; 
and  the  courtesy  of  his  general  manner  was  only  so  far 
restrained  on  the  bench  as  was  necessary  for  the  dignity 
of  office,  and  for  the  suppression  of  familiarity. 

"His  industry  and  powers  of  labour,  when  contem 
plated  in  connection  with  his  social  temper,  show  a  facility 
that  does  not  generally  belong  to  parts  of  such  strength." 

"  To  qualities  such  as  these,  he  joined  an  immovable 
firmness  befitting  the  office  of  presiding  judge  in  the 
highest  tribunal  of  the  country.  It  was  not  the  result  of 
excited  feeling,  and  consequently  never  rose  or  fell  with 
the  emotions  of  the  day.  It  was  the  constitution  of  his 
nature,  and  sprung  from  the  composure  of  a  mind  undis 
turbed  by  doubt,  and  of  a  heart  unsusceptible  of  fear." 

"  In  him  his  country  has  seen  that  triple  union  of  law 
yer,  statesman,  and  patriot,  which  completes  the  frame 
of  a  great  constitutional  judge." 

He  had  not  the  technical  learning  in  the  common  law 
of  Coke,  or  of  several  of  Coke's  successors.  But,  in  the 
felicitous  words  of  Mr.  Justice  Story,  "he  seized,  as  it 
were  by  intuition,  the  very  spirit  of  juridical  doctrines, 
though  cased  up  in  the  armor  of  centuries;  and  he  dis 
cussed  authorities  as  if  the  very  minds  of  the  judges 
themselves  stood  disembodied  before  him."  » 

He  had  not  the  learning  of  Nottingham  or  of  Hard- 
wicke  in  the  jurisdiction  and  practice  of  the  court  of 
chancery,  or  of  Mansfield  in  the  general  maritime  law. 
But  his  judgments  show  that  he  was  a  master  of  the  prin 
ciples  of  equity  and  of  commercial  law. 

He  had  not  the  elegant  scholarship  of  Stowell.  But  it 
VOL.  I  — 5 


John  Marshall  Memorial.  66 

is  not  too  much  to  say  that  his  judgments  in  prize  causes 
exhibit  a  broader  and  more  truly  international  view  of  the 
law  of  prize.  Upon  the  question  of  the  exemption  of 
ships  of  war  and  some  other  ships,  it  was  observed  by 
Lord  Justice  Brett  in  the  English  Court  of  Appeal  in  1880, 
"  the  first  case  to  be  carefully  considered  is,  and  always 
will  be,  The  Exchange,"  decided  by  Chief  Justice  Marsh 
all  in  1812. 

The  jurisdiction  of  the  court  over  which  he  presided^ 
was  not  confined  to  one  department  or  branch  of  the  law  ;\( 
it  included  common  law,  equity,  maritime  law,  the 
of  admiralty  and  prize,  and,  in  some  degree,  the  civil 
of  Spain  and  of  France. 

Beyond  all  this,  the  jurisdiction  of  his  court  extended 
to  constitutional  law,  in  a  more  comprehensive  sense  than 
ever  belonged  to  the  courts  of  any  other  country. 

In  England,  there  is  no  law  of  higher  sanction  than 
an  act  of  Parliament;  and  Parliament  has  uncontrolled 
power  to  change  or  to  repeal  even  Magna  Charta.  It  is 
otherwise  in  this  country. 

One  of  the  earliest  and  most  important  judgments  of 
Marshall  is  Marbury  against  Madison,  decided  in  1803, 
in  which  the  paramount  obligation  of  the  Constitution 
over  all  ordinary  statutes  was  declared  and  established 
by  a  course  of  reasoning  which  may  be  indicated  by  a 
few  extracts  from  the  opinion: 

"  The  Constitution  is  either  a  superior  paramount  law, 
unchangeable  by  ordinary  means;  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other  acts,  is  alterable 
when  the  legislature  shall  please  to  alter  it.  If  the  former 
part  of  the  alternative  be  true,  then  a  legislative  act  con 
trary  to  the  Constitution  is  not  law;  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on 


67  Virginia  —  Address  of  Justice  Horace  Gray. 

the  part  of  the  people,  to  limit  a  power  in  its  own  nature 
illimitable. 

"  Certainly  all  those  who  have  framed  written  consti 
tutions  contemplate  them  as  forming  the  fundamental 
and  paramount  law  of  the  nation,  and  consequently  the 
theory  of  every  such  government  must  be,  that  an  act  of 
the  legislature,  repugnant  to  the  Constitution,  is  void. 
This  theory  is  essentially  attached  to  a  written  constitu 
tion,  and  is  consequently  to  be  considered  by  this  court 
as  one  of  the  fundamental  principles  of  our  society." 

"  It  is  emphatically  the  province  and  duty  of  the  judi 
cial  department  to  say  what  the  law  is.  Those  who 
apply  the  rule  to  particular  cases  must  of  necessity  ex 
pound  and  interpret  that  rule.  If  two  laws  conflict  with 
each  other,  the  courts  must  decide  on  the  operation  of 
each.  So  if  a  law  be  in  opposition  to  the  Constitution; 
if  both  the  law  and  the  Constitution  apply  to  a  particular 
case,  so  that  the  court  must  either  decide  that  case  con 
formably  to  the  law  disregarding  the  Constitution;  or 
conformably  to  the  Constitution  disregarding  the  law; 
the  court  must  determine  which  of  these  conflicting  rules 
governs  the  case.  This  is  of  the  very  essence  of  judicial 
duty.  If,  then,  the  courts  are  to  regard  the  Constitution, 
and  the  Constitution  is  superior  to  any  ordinary  act  of  the 
legislature,  the  Constitution,  and  not  such  ordinary  act, 
must  govern  the  case  to  which  they  both  apply." 

"  The  particular  phraseology  of  the  Constitution  of  the 
United  States  confirms  and  strengthens  the  principle 
supposed  to  be  essential  to  all  written  constitutions,  that 
a  law  repugnant  to  the  Constitution  is  void ;  and  that 
courts,  as  well  as  other  departments,  are  bound  by  that 
instrument." 

In  the  light  of  experience,  it  is  curious  to  look  back  upon 


John  Marshall  Memorial.  68 

the  doubt  and  apprehension  entertained  by  some  of  the 
Northern  Federalists  with  regard  to  Marshall  shortly  be 
fore  he  became  Chief  Justice.  For  instance,  on  the  29th 
of  December,  1799,  when  he  had  just  entered  the  House 
of  Representatives,  Oliver  Wolcott,  then  Secretary  of  the 
Treasury  under  President  Adams,  wrote  to  Fisher  Ames : 
"  He  is  doubtless  a  man  of  virtue  and  distinguished  talents ; 
but  he  will  think  much  of  the  State  of  Virginia,  and  is 
too  much  disposed  to  govern  the  world  according  to  rules 
of  logic ;  he  will  read  and  expound  the  Constitution  as  if 
it  were  a  penal  statute,  and  will  sometimes  be  embarrassed 
with  doubts  of  which  his  friends  will  not  perceive  the 
importance." 

Why  should  he  not  "  think  much  of  the  State  of  Vir 
ginia  ?"  What  State  of  the  Union  had  produced  such  a 
galaxy  of  great  men  ?  And  what  American,  worthy  of 
the  name,  does  not  cherish  a  peculiar  affection  for  the 
State  of  his  birth  and  his  home '?  But  such  an  affection 
for  one's  own  State  is  by  no  means  incompatible  with  a- 
paramount  allegiance  and  devotion  to  the  United  States 
as  one's  country.  There  is  no  more  striking  illustration 
of  this  truth  than  Chief  Justice  Marshall  himself. 

It  was  upon  writs  of  error  to  the  highest  court  of  Vir 
ginia  in  which  a  decision  in  the  case  could  be  had — at  first 
in  1816,  in  the  case  of  Martin  against  Hunter's  Lessee, 
a  case  between  private  individuals;  and  afterwards  in 
1821,  in  the  case  of  Cohens  against  Virginia,  a  criminal 
prosecution  instituted  by  the  State  —  that  the  Supreme 
Court,  under  the  lead  of  Chief  Justice  Marshall,  upheld 
and  established  its  appellate  jurisdiction,  under  the  Con 
stitution  and  the  Judiciary  Act,  to  review  the  judgment 
of  the  State  court  against  a  right  claimed  under  the  Con 
stitution  or  the  laws  of  the  United  States.  In  the  first 


69  Virginia — Address  of  Justice  Horace  Gray. 

case,  indeed,  perhaps  because  it  came  from  his  own  State, 
he  allowed  Mr.  Justice  Story  to  draw  up  the  opinion  of 
the  court.  But  in  the  second  case  he  himself  expressed 
the  unanimous  conclusion  of  the  court  in  one  of  his  most 
elaborate  and  most  powerful  judgments. 

The  idea  that  he  would  "  read  and  expound  the  Con 
stitution  as  if  it  were  a  penal  statute  "  seems  now  almost 
ludicrous.  Take,  for  instance,  his  judgments  in  the  cases 
of  McCulloch  against  Maryland  in  1819,  and  of  Wiltberger 
in  1820.  In  Wiltberger's  case,  he  clearly  stated  the  reasons 
and  the  limits  of  the  rule  that  penal  statutes  are  to  be  con 
strued  strictly.  But  in  McCulloch's  case,  when  dealing 
with  the  question  what  powers  may  be  implied  from  the 
express  grants  to  Congress  in  the  Constitution,  he  said :  "A 
constitution,  to  contain  an  accurate  detail  of  all  the  sub 
divisions  of  which  its  great  powers  will  admit,  and  of  all 
the  means  by  which  they  may  be  carried  into  execution, 
would  partake  of  the  prolixity  of  a  legal  code,  and  could 
hardly  be  embraced  by  the  human  mind.  It  would  prob 
ably  never  be  understood  by  the  public.  Its  nature,  there 
fore,  requires  that  only  its  great  outlines  should  be 
marked,  its  important  objects  designated,  and  the  minor 
ingredients  which  compose  those  objects  be  deduced  from 
the  nature  of  the  objects  themselves.  That  this  idea  was 
entertained  by  the  framers  of  the  American  Constitution 
is  not  only  to  be  inferred  from  the  nature  of  the  instru 
ment,  but  from  the  language.  Why  else  were  some  of 
the  limitations,  found  in  the  ninth  section  of  the  first 
article,  introduced  ?  It  is  also,  in  some  degree,  warranted 
by  their  having  omitted  to  use  any  restrictive  term  which 
might  prevent  its  receiving  a  fair  and  just  interpretation. 
In  considering  this  question,  then,  we  must  never  forget 
that  it  is  a  constitution  we  are  expounding." 


John  Marshall  Memorial.  70 

In  McCulloch's  case,  after  full  discussion,  he  thus  de 
fined  the  rule:  "We  admit,  as  all  must  admit,  that  the 
powers  of  the  government  are  limited,  and  that  its  limits 
are  not  to  be  transcended.  But  we  think  the  sound  con 
struction  of  the  Constitution  must  allow  to  the  national 
legislature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  execu 
tion,  which  will  enable  that  body  to  perform  the  high 
duties  assigned  to  it,  in  the  manner  most  beneficial  to 
the  people.  Let  the  end  be  legitimate,  let  it  be  within 
the  scope  of  the  Constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to  that  end,  which 
are  not  prohibited,  but  consist  with  the  letter  and  spirit 
of  the  Constitution,  are  constitutional."  "  Where  the  law 
is  not  prohibited,  and  is  really  calculated  to  effect  any  of 
the  objects  intrusted  to  the  government,  to  undertake 
here  to  inquire  into  the  degree  of  its  necessity  would  be 
to  pass  the  line  which  circumscribes  the  judicial  depart 
ment,  and  to  tread  on  legislative  ground.  This  court 
disclaims  all  pretensions  to  such  a  power." 

Among  his  other  greatest  judgments  are  United  States 
against  Peters,  on  the  sanctity  of  judgments  of  the  courts 
of  the  United  States;  Fletcher  against  Peck,  and  Dart 
mouth  College  against  Woodward,  that  a  grant  by  a  State 
is  a  contract,  the  obligation  of  which  cannot  afterwards 
be  impaired ;  Gibbons  against  Ogden,  and  Brown  against 
Maryland,  on  the  paramount  nature  of  the  power  of 
Congress  to  regulate  commerce  with  foreign  nations  and 
among  the  several  States;  Sturges  against  Crowninshield, 
on  the  power  of  the  States  to  pass  insolvent  laws;  and 
Osborn  against  the  Bank  of  the  United  States,  on  the 
subject  of  suits  by  the  Bank  of  the  United  States. 

But  he  gave  due  weight  to  the  decisions  of  the  courts 


71  Virginia— Address  of  Justice  Horace  Gray. 

of  the  several  States,  saying,  in  Elmendorf  against  Tay 
lor:  "This  court  has  uniformly  professed  its  disposition, 
in  cases  depending  on  the  laws  of  a  particular  State,  to 
adopt  the  construction  which  the  courts  of  the  State  have 
given  to  those  laws.  This  course  is  founded  on  the  prin 
ciple,  supposed  to  be  universally  recognized,  that  the 
judicial  department  of  every  government,  where  such 
department  exists,  is  the  appropriate  organ  for  constru 
ing  the  legislative  acts  of  that  government.  Thus,  no 
court  in  the  universe,  which  professed  to  be  governed  by 
principle,  would,  we  presume,  undertake  to  say  that  the 
courts  of  Great  Britain,  or  of  France,  or  of  any  other  na 
tion,  had  misunderstood  their  own  statutes,  and  therefore 
erect  itself  into  a  tribunal  which  should  correct  such  mis 
understanding.  We  receive  the  construction  given  by 
the  courts  of  the  nation  as  the  true  sense  of  the  law,  and 
feel  ourselves  no  more  at  liberty  to  depart  from  that  con 
struction  than  to  depart  from  the  words  of  the  statute. 
On  this  principle,  the  construction  given  by  this  court  to 
the  Constitution  and  laws  of  the  United  States  is  received 
by  all  as  the  true  construction ;  and  on  the  same  principle, 
the  construction  given  by  the  courts  of  the  several  States 
to  the  legislative  acts  of  those  States  is  received  as  true, 
unless  they  come  in  conflict  with  the  Constitution,  laws 
or  treaties  of  the  United  States." 

In  the  cases  of  Bollman  and  Swartwout  in  the  Supreme 
Court,  and  in  the  trial  of  Aaron  Burr  in  this  Circuit,  he 
set  bounds  to  the  doctrine  of  constructive  treasons.  As 
showing  the  pains  taken  by  the  Chief  Justice,  it  may  be 
interesting  to  note,  what  is  not  generally  known,  that 
on  June  29,  1807,  after  the  indictments  had  been  found 
against  Burr  and  others,  and  more  than  a  month  before 
the  trial,  he  wrote  letters  to  each  of  his  associates,  asking 


John  Marshall  Memorial.  72 

their  opinions  upon  questions  of  law  that  would  arise,  and 
saying:  "  I  am  aware  of  the  unwillingness  with  which  a 
judge  will  commit  himself  by  an  opinion  on  a  case  not 
before  him,  and  on  which  he  has  heard  no  argument. 
Could  this  case  be  readily  carried  into  the  Supreme  Court, 
I  would  not  ask  an  opinion  in  its  present  stage.  But 
these  questions  must  be  decided  by  the  judges  separately 
on  their  respective  circuits,  and  I  am  sure  there  would 
be  a  strong  and  general  repugnance  to  giving  contra 
dictory  decisions  on  the  same  points.  Such  a  circum 
stance  would  be  disreputable  to  the  judges  themselves, 
as  well  as  to  our  judicial  system.  This  consideration 
suggests  the  propriety  of  a  consultation  on  new  and  dif 
ficult  subjects,  and  will,  I  trust,  apologize  for  this  letter." 

His  letters  to  Mr.  Justice  Story  show  that  he  often 
consulted  him  on  admiralty  cases  pending  in  the  Circuit 
Court. 

One  is  apt  to  forget  that  Mr.  Justice  Story  was  orig 
inally  a  Democrat,  and  was  appointed  to  the  court  by 
James  Madison,  a  Democratic  President.  He  soon  be 
came  a  devoted  adherent  of  Chief  Justice  Marshall,  and 
fully  recognized  his  leadership. 

In  an  article  in  the  North  American  Review  in  1828 
he  wrote:  "We  resume  the  subject  of  the  constitutional 
labors  of  Chief  Justice  Marshall.  We  emphatically  say, 
of  Chief  Justice  Marshall;  for  though  we  would  not  be 
unjust  to  those  learned  gentlemen  who  have  from  time 
to  time  been  his  associates  on  the  bench,  we  are  quite 
sure  that  they  would  be  ready  to  admit,  what  the  public 
universally  believe,  that  his  master  mind  has  presided  in 
their  deliberations,  and  given  to  the  results  a  cogency  of 
reasoning,  a  depth  of  remark,  a  persuasiveness  of  argu 
ment,  a  clearness  and  elaboration  of  illustration,  and  an 


73  Virginia— Address  of  Justice"  Horace  Gray. 

elevation  and  comprehensiveness  of  conclusion,  to  which 
none  others  offer  a  parallel.  Few  decisions  upon  consti 
tutional  questions  have  been  made,  in  which  he  has  not 
delivered  the  opinion  of  the  court;  and  in  these  few,  the 
duty  devolved  upon  others  to  their  own  regret,  either 
because  he  did  not  sit  in  the  cause,  or  from  motives  of 
delicacy  abstained  from  taking  an  active  part." 

Five  years  later,  in  dedicating  his  Commentaries  on  the 
Constitution  of  the  United  States  to  Chief  Justice  Mar 
shall,  Mr.  Justice  Story  said :  "  When  I  look  back  upon 
your  judicial  labors  during  a  period  of  thirty-two  years, 
it  is  difficult  to  suppress  astonishment  at  their  extent  and 
variety,  and  at  the  exact  learning,  the  profound  reason 
ing  and  the  solid  principles  which  they  everywhere  dis 
play.  Other  judges  have  attained  an  elevated  reputation 
by  similar  labors  in  a  single  department  of  jurisprudence. 
But  in  one  department  (it  need  scarcely  be  said  that  I 
allude  to  that  of  constitutional  law),  the  common  consent 
of  your  countrymen  has  admitted  you  to  stand  without 
a  rival.  Posterity  will  assuredly  confirm,  by  its  deliber 
ate  award,  what  the  present  age  has  approved  as  an  act 
of  undisputed  justice." 

Upon  two  important  points  in  which  decisions  made 
in  Chief  Justice  Marshall's  time  have  been  since  over 
ruled,  the  later  decisions  are  in  accord  with  the  opinions 
which  he  finally  entertained. 

The  court,  in  1809,  in  opinions  delivered  by  him,  de 
cided  that  a  corporation  aggregate  could  not  be  a  citizen; 
and  could  not  litigate  in  the  courts  of  the  United  States, 
unless  in  consequence  of  the  character  of  its  members, 
appearing  by  proper  averments  upon  the  record.  In 
Louisville  Kailroad  Company  against  Letson,  in  1844, 
those  decisions  were  overruled;  and  it  appears  by  the 


John  Marshall  Memorial.  74 

opinion  of  the  court,  as  well  as  by  a  letter  from  Mr.  Jus 
tice  Story  to  Chancellor  Kent  of  August  31,  1844,  that 
Chief  Justice  Marshall  had  become  satisfied  that  the  early 
decisions  were  wrong. 

In  the  case  of  The  Thomas  Jefferson,  in  1825,  it  was 
decided  by  a  unanimous  opinion  of  the  court,  delivered 
by  Mr.  Justice  Story,  that  the  jurisdiction  of  the  courts 
of  admiralty  of  the  United  States  was  limited  by  the  ebb 
and  flow  of  the  tide.  But  an  article  published  in  the 
New  York  Review  for  October,  1838,  by  one  who  was 
evidently  intimate  with  Chief  Justice  Marshall,  tells  us: 
"  He  said  (and  he  spoke  of  it  as  one  of  the  most  deliber 
ate  opinions  of  his  life),  at  a  comparatively  late  period, 
that  he  had  always  been  of  opinion  that  we  in  America 
had  misapplied  the  principle  upon  which  the  admiralty 
jurisdiction  depended  —  that  in  England  the  common  ex 
pression  was,  that  the  admiralty  jurisdiction  extended 
only  on  tide  waters,  and  as  far  as  the  tide  ebbed  and 
flowed;  and  this  was  a  natural  and  reasonable  exposition 
of  the  jurisdiction  in  England,  where  the  rivers  were  very 
short,  and  none  of  them  navigable  from  the  sea  beyond 
the  ebb  and  flow  of  the  tide  —  that  such  a  narrow  inter 
pretation  was  wholly  inapplicable  to  the  great  rivers  of 
America;  that  the  true  principle,  upon  which  the  admi 
ralty  jurisdiction  in  America  depended,  was  to  ascertain 
how  far  the  river  was  navigable  from  the  sea;  and  that 
consequently,  in  America,  the  admiralty  jurisdiction  ex 
tended  upon  our  great  rivers  not  only  as  far  as  the  tide 
ebbed  and  flowed  in  them,  but  as  far  as  they  were  navi 
gable  from  the  sea ;  as,  for  example,  on  the  Mississippi  and 
its  branches,  up  to  the  falls  of  the  Ohio.  He  also  thought 
that  our  great  lakes  at  the  west  were  not  to  be  consid 
ered  as  mere  inland  lakes,  but  were  to  be  deemed  inland 


75  Virginia — Address  of  Justice  Horace  Gray. 

navigable  seas,  and  as  such  were  subject,  or  ought  to  be 
subject,  to  the  same  jurisdiction."  He  thus  foreshadowed 
the  decision  made  in  1851  in  the  case  of  The  Genesee 
Chief,  by  which  the  decision  in  The  Thomas  Jefferson 
was  explicitly  overruled. 

Among  the  most  interesting  records  of  the  impression 
made  by  Chief  Justice  Marshall  upon  his  contemporaries 
are  entries  written  presently  after  his  death  (although 
not  published  until  much  later)  in  the  diary  of  John 
Quincy  Adams,  who  was  then  sixty-eight  years  old ;  had 
been  a  member  of  either  House  of  Congress;  charged 
with  many  a  diplomatic  mission  abroad;  Secretary  of 
State  throughout  the  administration  of  President  Mon 
roe,  and  himself  President  of  the  United  States ;  had  long 
before  been  an  active  member  of  the  bar  of  the  Supreme 
Court,  and  had  declined  the  appointment  of  Associate 
Justice,  offered  him  by  President  Madison  before  he  ap 
pointed  Mr.  Justice  Story;  and  who,  as  his  diary  shows, 
was  not  given  to  indiscriminate  or  excessive  laudation. 

In  that  diary,  under  date  of  July  10, 1835,  Mr.  Adams 
wrote:  "John  Marshall,  Chief  Justice  of  the  United 
States,  died  at  Philadelphia  last  Monday,  the  6th  instant. 
He  was  one  of  the  most  eminent  men  that  this  country 
has  ever  produced.  He  has  held  this  appointment  thirty- 
five  years.  It  was  the  last  act  of  my  father's  adminis 
tration,  and  one  of  the  most  important  services  rendered 
by  him  to  his  country.  All  constitutional  governments 
are  flexible  things;  and  as  the  Supreme  Judicial  Court 
is  the  tribunal  of  last  resort  for  the  construction  of  the 
Constitution  and  the  laws,  the  office  of  Chief  Justice  of 
that  court  is  a  station  of  the  highest  trust,  of  the  deepest 
responsibility,  and  of  influence  far  more  extensive  than 
that  of  the  President  of  the  United  States.  John  Mar- 


John  Marshall  Memorial.  76 

shall  was  a  Federalist  of  the  "Washington  school.  The 
Associate  Judges  from  the  time  of  his  appointment  have 
generally  been  taken  from  the  Democratic  or  Jeffersonian 
party."  "  Marshall,  by  the  ascendency  of  his  genius,  by 
the  amenity  of  his  deportment,  and  by  the  imperturbable 
command  of  his  temper,  has  given  a  permanent  and  sys 
tematic  character  to  the  decisions  of  the  court,  and  settled 
many  great  constitutional  questions  favorably  to  the  con 
tinuance  of  the  Union." 

In  the  same  diary,  again,  a  month  later,  Mr.  Adams 
wrote:  "The  office  of  Chief  Justice  requires  a  mind  of 
energy  sufficient  to  influence  generally  the  minds  of  a 
majority  of  his  associates;  to  accommodate  his  judgment 
to  theirs,  or  theirs  to  his  own;  a  judgment  also  capable 
of  abiding  the  test  of  time  and  of  giving  satisfaction  to 
the  public.  It  requires  a  man  profoundly  learned  in  the 
law  of  nations,  in  the  commercial  and  maritime  law,  in 
the  civil  Jaw,  in  the  common  law  of  England,  and  in  the 
general  statute  laws  of  the  several  States  of  the  Union. 
With  all  these  powers  steadily  exercised  during  a  period 
of  thirty-four  years,  Chief  Justice  Marshall  has  settled 
many  questions  of  constitutional  law,  certainly  more  than 
all  the  Presidents  of  the  United  States  together." 

The  late  Mr.  Justice  Bradley,  after  a  distinguished  serv 
ice  of  nearly  twenty  years  on  the  bench  of  the  Supreme 
Court,  wrote  in  1889  of  Chief  Justice  Marshall  as  follows: 
"It  is  needless  to  say  that  Marshall's  reputation  as  a  great 
constitutional  judge  is  peerless.  The  character  of  his 
mind  and  his  previous  training  were  such  as  to  enable 
him  to  handle  the  momentous  questions  to  which  the  con 
flicting  views  upon  the  Constitution  gave  rise,  with  the 
soundest  logic,  the  greatest  breadth  of  view,  and  the  most 
far-seeing  statesmanship.  He  came  to  the  bench  with  a 


77  Virginia— Address  of  Justice  Horace  Gray. 

reputation  already  established  —  the  reputation  not  only 
of  a  great  lawyer,  but  of  an  eminent  statesman  and  pub 
licist."  "  It  may  truly  be  said  that  the  Constitution  re 
ceived  its  final  and  permanent  form  from  the  judgments 
rendered  by  the  Supreme  Court  during  the  period  in  which 
Marshall  was  at  its  head.  With  a  few  modifications, 
superinduced  by  the  somewhat  differing  views  on  two  or 
three  points  of  his  great  successor,  and  aside  from  the  new 
questions  growing  out  of  the  late  civil  war  and  the  recent 
constitutional  amendments,  the  decisions  made  since  Mar 
shall's  time  have  been  little  more  than  the  application  of 
the  principles  established  by  him  and  his  venerated  asso 
ciates." 

"  The  American  Constitution  as  it  now  stands,"  says 
Mr.  James  Bryce,  in  his  book  on  The  American  Common 
wealth,  "  is  a  far  more  complete  and  finished  instrument 
than  it  was  when  it  came  fire-new  from  the  hands  of  the 
Convention.  It  is  not  merely  their  work,  but  the  work 
of  the  judges,  and  most  of  all  of  one  man,  the  great  Chief 
Justice  Marshall."  "  His  work  of  building  up  and  work 
ing  out  the  Constitution  was  accomplished  not  so  much 
by  the  decisions  he  gave,  as  by  the  judgments  in  which 
he  expounded  the  principles  of  these  decisions,  judgments 
which  for  their  philosophical  breadth,  the  luminous  exact 
ness  of  their  reasoning,  and  the  fine  political  sense  which 
pervades  them,  have  never  been  surpassed  and  rarely 
equaled  by  the  most  famous  jurists  of  modern  Europe 
or  of  ancient  Rome."  u  He  grasped  with  extraordinary 
force  and  clearness  the  cardinal  idea  that  the  creation  of 
a  national  government  implies  the  grant  of  all  such  sub 
sidiary  powers  as  are  requisite  to  the  effectuation  of  its 
main  powers  and  purposes;  but  he  developed  and  applied 
this  idea  with  so  much  prudence  and  sobriety,  never 


John  Marshall  Memorial.  78 

treading  on  purely  political  ground,  never  indulging  the 
temptation  to  theorize,  but  content  to  follow  out  as  a 
lawyer  the  consequences  of  legal  principles,  that  the  Con 
stitution  seemed  not  so  much  to  rise  under  his  hands  to 
its  full  stature,  as  to  be  gradually  unveiled  by  him  till  it 
stood  revealed  in  the  harmonious  perfection  of  the  form 
which  its  framers  had  designed.1" 

The  very  greatness  and  completeness  of  the  work  of 
Chief  Justice  Marshall  tends  to  prevent  our  appreciating 
how  great  it  was. 

He  was  a  great  statesman,  as  well  as  a  great  lawyer, 
and  yet  constantly  observed  the  distinction  between  law, 
as  judicially  administered,  and  statesmanship. 

The  Constitution  of  the  United  States  created  a  nation 
upon  the  foundation  of  a  written  constitution;  and,  as 
expounded  by  Marshall,  transferred  in  large  degree  the 
determination  of  the  constitutionality  of  the  acts  of  the 
legislature  or  the  executive  from  the  political  to  the  judi 
cial  department. 

Marshall  grew  up  with  the  Constitution.  He  served  in 
the  legislature  of  Virginia  before  and  after  its  adoption, 
and  in  the  convention  of  Virginia  by  which  it  was  ratified. 
He  took  part  in  its  administration,  abroad  and  at  home, 
in  a  foreign  mission,  in  the  House  of  Representatives, 
and  in  the  Department  of  State,  before  he  became  the 
head  of  the  judiciary,  within  a  quarter  of  a  century  after 
the  Declaration  of  Independence,  and  less  than  twelve 
years  after  the  Constitution  was  established. 

During  the  thirty-four  years  of  his  Chief  Justiceship 
he  expounded  and  applied  the  Constitution,  in  almost 
every  aspect,  with  unexampled  sagacity,  courage  and 
caution. 

He  had  an  intuitive  perception  of  the  real  issue  of 


79  Virginia  — Address  of  Justice  Horace  Gray. 

every  case,  however  complicated,  and  of  the  way  in  which 
it  should  be  decided. 

His  manner  of  reasoning  was  peculiarly  judicial.  It 
was  simple,  direct,  clear,  strong,  earnest,  logical,  compre 
hensive,  demonstrative,  starting  from  admitted  premises, 
frankly  meeting  every  difficulty,  presenting  the  case  in 
every  possible  aspect,  and  leading  to  philosophical  and 
profoundly  wise  conclusions,  sound  in  theory  and  practical 
in  result.  He  recognized  that,  next  to  a  right  decision,  it 
was  important  that  reasons  for  the  decision  should  be  fully 
stated  so  as  to  satisfy  the  parties  and  the  public.  And  it 
may  be  said  of  him,  as  Charles  Butler,  in  his  Reminiscences, 
says  of  Lord  Camden,  that  he  sometimes  "rose  to  sublime 
strains  of  eloquence:  but  their  sublimity  was  altogether 
in  the  sentiment;  the  diction  retained  its  simplicity,  and 
this  increased  the  effect." 

It  was  in  the  comparatively  untrodden  domain  of  con 
stitutional  law,  in  bringing  acts  of  the  legislature  and  of 
the  executive  to  the  test  of  the  fundamental  law  of  the 
Constitution,  that  his  judicial  capacity  was  preeminently 
shown.  Deciding  upon  legal  grounds,  and  only  so  much 
as  was  necessary  for  the  disposition  of  the  particular  case, 
he  constantly  kept  in  mind  the  whole  scheme  of  the  Con 
stitution.  And  he  answered  all  possible  objections  with 
such  fullness  and  such  power  as  to  make  his  conclusions 
appear  natural  and  inevitable. 

The  principles  affirmed  by  his  judgments  have^becojne 
axioms  of  constitutional  law.  And  it  is  difficult  to  over 
estimate  the  effect  which  those  judgments  have  had  in 
quieting  controversies  on  constitutional  questions,  and 
in  creating  or  confirming  a  sentiment  of  allegiance  to  the 
Constitution,  as  loyal  and  devoted  as  ever  was  given  to 
any  sovereign. 


John  Marshall  Memorial.  80 

You  will,  I  hope,  forgive  me  one  personal  anecdote. 
While  I  had  the  honor  to  be  Chief  Justice  of  Massachu 
setts,  I  was  a  guest  of  a  Boston  merchant  at  a  dinner  party 
of  gentlemen,  which  included  Mr.  Bartlett,  then  the  fore 
most  lawyer  of  Massachusetts,  and  one  of  the  leaders  at 
the  bar  of  the  Supreme  Court  of  the  United  States.  In 
the  course  of  the  dinner,  the  host,  turning  to  me,  asked, 
"How  great  a  judge  was  this  Judge  Marshall,  of  whom 
you  lawyers  are  always  talking?"  I  answered,  "The 
greatest  judge  in  the  language."  Mr.  Bartlett  spoke  up, 
"  Is  not  that  rather  strong,  Chief  Justice  ?  "  I  rejoined, 
"Mr.  Bartlett,  what  do  you  say?"  After  a  moment's 
pause,  and  speaking  with  characteristic  deliberation  and 
emphasis,  he  replied:  "I  do  not  know  but  you  are 
right." 

A  service  of  nearly  twenty  years  on  the  bench  of  the 
Supreme  Court  has  confirmed  me  in  this  estimate.  We 
must  remember  that,  as  has  been  well  said  by  an  eminent 
advocate  of  our  own  time,  Mr.  Edward  J.  Phelps,  in  speak 
ing  of  Chief  Justice  Marshall :  "  The  test  of  historical 
greatness  —  the  sort  of  greatness  that  becomes  important 
in  future  history  —  is  not  great  ability  merely.  It  is  great 
ability,  combined  with  great  opportunity,  greatly  em 
ployed."  None  other  of  the  great  judges  of  England  or 
of  America  ever  had  the  great  opportunity  that  fell  to 
the  lot  of  Marshall. 

John  Marshall,  during  his  term  of  office  as  Chief  Justice, 
undertook  no  other  public  employment,  except  that,  at 
the  beginning  of  that  term,  and  at  the  particular  request 
of  President  John  Adams,  he  continued  to  hold  the  office 
of  Secretary  of  State  for  the  last  month  of  his  adminis 
tration  ;  and  that  at  seventy-four  years  of  age,  and  after 
having  been  Chief  Justice  twenty-eight  years,  he  was  per- 


81  Virginia  — Address  of  Justice  Horace  Gray. 

suaded  to  serve  as  a  member  of  the  Virginia  convention 
of  1829-30  to  revise  the  constitution  of  the  State. 

At  the  time  of  becoming  a  member  of  that  convention, 
he  wrote  to  Mr.  Justice  Story  an  amusingly  apologetic 
letter,  dated  Richmond,  June  11,  1829,  in  which  he 
said:  "I  am  almost  ashamed  of  my  weakness  and  irreso 
lution,  when  I  tell  you  that  I  am  a  member  of  our  con 
vention.  I  was  in  earnest  when  I  told  you  that  I  would 
not  come  into  that  body,  and  really  believed  that  I  should 
adhere  to  that  determination;  but  I  have  acted  like  a  girl 
addressed  by  a  gentleman  she  does  not  positively  dislike, 
but  is  unwilling  to  marry.  She  is  sure  to  yield  to  the 
advice  and  persuasion  of  her  friends."  "I  assure  you  I 
regret  being  a  member,  and  could  I  have  obeyed  the  dic 
tates  of  my  own  judgment  I  should  not  have  been  one. 
I  am  conscious  that  I  cannot  perform  a  part  I  should  wish 
to  take  in  a  popular  assembly;  but  I  am  like  Moliere's 
Medeoin  Malgre  Lui" 

Mr.  Grigsby  tells  us  that  "  he  spoke  but  seldom  in  the 
convention,  and  always  with  deliberation,"  and  that  "  an 
intense  earnestness  was  the  leading  trait  of  his  manner." 
Some  remarks  of  his  on  the  judicial  tenure  may  fitly  be 
quoted,  without  comment. 

Strenuously  upholding,  as  essential  to  the  independ 
ence  of  the  judiciary,  the  tenure  of  office  during  good 
behavior,  he  said:  "I  have  grown  old  in  the  opinion 
that  there  is  nothing  more  dear  to  Virginia,  or  ought  to 
be  dearer  to  her  statesmen,  and  that  the  best  interests  of 
our  country  are  secured  by  it.  Advert,  Sir,  to  the  duties 
of  a  judge.  He  has  to  pass  between  the  government  and 
the  man  whom  that  government  is  prosecuting:  between 
the  mcst  powerful  individual  in  the  community  and  the 
VOL.  1  —  6 


John  Marshall  Memorial.  82 

poorest  and  most  unpopular."  "  Is  it  not,  to  the  last 
degree,  important  that  he  should  be  rendered  perfectly 
and  completely  independent,  with  nothing  to  influence  or 
control  him  but  God  and  his  conscience?  You  do  not 
allow  a  man  to  perform  the  duties  of  a  juryman  or  a  judge 
if  he  has  one  dollar  of  interest  in  the  matter  to  be  decided ; 
and  will  you  allow  a  judge  to  give  a  decision  when  his 
office  may  depend  upon  it  ?  When  his  decision  may  of 
fend  a  powerful  and  influential  man?"  "And  will  you 
make  me  believe  that  if  the  manner  of  his  decision  may 
affect  the  tenure  of  that  office,  the  man  himself  will  not 
be  affected  by  that  consideration?"  "I  have  always 
thought,  from  my  earliest  youth  till  now,  that  the  great 
est  scourge  an  angry  Heaven  ever  inflicted  upon  an  un 
grateful  and  a  sinning  people  was  an  ignorant,  a  corrupt, 
or  a  dependent  judiciary." 

The  question  of  the  weight,  as  a  precedent,  of  the  act 
of  Congress  of  1802,  abolishing  the  circuit  judgeships 
created  by  Congress  in  1801,  having  been  discussed  by 
other  members  of  the  convention,  and  Chief  Justice  Mar 
shall's  opinion  having  been  requested,  he  said,  "that  it 
was  with  great,  very  great  repugnance,  that  he  rose  to  utter 
a  syllable  upon  the  subject.  His  reluctance  to  do  so  was 
very  great  indeed;  and  he  had,  throughout  the  previous 
debates  on  this  subject,  most  carefully  avoided  expressing 
any  opinion  whatever  upon  what  had  been  called  a  con 
struction  of  the  Constitution  of  the  United  States  by  the 
act  of  Congress  of  1802.  He  should  now,  as  far  as  possi 
ble,  continue  to  avoid  expressing  any  opinion  on  that  act 
of  Congress.  There  was  something  in  his  situation  which 
ought  to  induce  him  to  avoid  doing  so.  He  would  go  no 
farther  than  to  say  that  he  did  not  conceive  the  Consti 
tution  to  have  been  at  all  definitively  expounded  by  a 


83  Virginia — Address  of  Justice  Horace  Gray. 

single  act  of  Congress.  He  should  not  meddle  with  the 
question  whether  a  course  of  successive  legislation  should 
or  should  not  be  held  as  a  final  exposition  of  it;  but  he 
would  say  this:  that  a  single  act  of  Congress,  unconnected 
with  any  other  act  by  the  other  departments  of  the  Fed 
eral  Government,  and  especially  of  that  department  more 
especially  intrusted  with  the  construction  of  the  Consti 
tution  in  a  great  degree,  when  there  was  no  union  of  de 
partments,  but  the  legislative  department  alone  had  acted, 
and  acted  but  once,  even  admitting  that  act  not  to  have 
passed  in  times  of  high  political  and  party  excitement, 
could  never  be  admitted  as  final  and  conclusive." 

A  discussion  of  the  merits  of  his  Life  of  Washington 
would  be  out  of  place  on  this  occasion.  But  I  may  men 
tion  having  been  favored  with  a  sight  of  his  letter  of 
November  25,  1833,  accepting  the  Presidency  of  the 
Washington  National  Monument  Society,  in  which  he 
said:  "  You  are  right  in  supposing  that  the  most  ardent 
wish  of  my  heart  is  to  see  some  lasting  testimonial  of  the 
grateful  affection  of  his  country  erected  to  the  memory 
of  her  first  citizen.  I  have  always  wished  it,  and  have 
always  thought  that  the  metropolis  of  the  Union  was  the 
first  place  for  this  national  monument." 

His  letter  to  Delaplaine,  containing  the  autobiography 
already  quoted,  contains  another  passage  too  character 
istic  to  be  omitted :  "  I  received  also  a  letter  from  you, 
requesting  some  expression  of  my  sentiments  respecting 
your  repository,  and  indicating  an  intention  to  publish  in 
some  conspicuous  manner  the  certificates  which  might  be 
given  by  Mr.  Wirt  and  myself.  I  have  been  ever  partic 
ularly  unwilling  to  obtain  this  kind  of  distinction,  and 
must  insist  on  not  receiving  it  now.  I  have,  however,  no 
difficulty  in  saying,  that  your  work  is  one  in  which  the 


John  Marshall  Memorial.  84 

nation  ought  to  feel  an  interest,  and  I  sincerely  wish  it 
may  be  encouraged,  and  that  you  may  receive  ample 
compensation  for  your  labor  and  expense.  The  execu 
tion  is,  I  think,  in  many  respects  praiseworthy.  The  por 
traits,  an  object  of  considerable  interest,  are,  so  far  as  my 
acquaintance  extends,  good  likenesses;  and  the  printing 
is  neatly  executed  with  an  excellent  type.  In  the  char 
acters  there  is  of  course  some  variety.  Some  of  them  are 
drawn  with  great  spirit  and  justice;  some  are,  perhaps, 
rather  exaggerated.  There  is  much  difficulty  in  giving 
living  characters,  at  any  rate  until  they  shall  have  with 
drawn  from  the  public  view."  And  Mr.  Wirt,  then  At 
torney-General,  wrote  a  similar  letter  November  5, 1818, 
to  Delaplaine. 

Marshall  was,  like  Lord  Camden  and  other  eminent 
judges,  a  great  reader  of  novels.  On  November  26, 
1826,  he  wrote  to  Mr.  Justice  Story  that  he  had  just  fin 
ished  reading  Miss  Austen's  novels,  and  was  much  pleased 
with  them,  saying:  "  Her  flights  are  not  lofty,  she  does 
not  soar  on  eagle's  wings,  but  she  is  pleasing,  interesting, 
equable  and  yet  amusing." 

To  his  latest  years  he  retained  his  love  of  country  life, 
and  his  habits  of  exercise  in  the  open  air.  He  continued 
to  own  the  family  place  in  Fauquier  county,  where  he 
had  passed  his  boyhood,  and  usually  visited  it  in  the 
summer.  And  he  had  another  farm  three  or  four  miles 
from  Richmond,  and  often  walked  out  or  in. 

Mr.  Binney,  in  his  sketches  of  the  Old  Bar  of  Phila 
delphia,  incidentally  mentions:  "After  doing  my  best, 
one  morning,  to  overtake  Chief  Justice  Marshall  in  his 
quick  march  to  the  Capitol,  when  he  was  nearer  to  eighty 
than  to  seventy,  I  asked  him  to  what  cause  in  particular 
he  attributed  that  strong  and  quick  step ;  and  he  replied 


85  Virginia— Address  of  Justice  Horace  Gray. 

that  he  thought  it  was  most  due  to  his  commission  in  the 
army  of  the  Revolution,  in  which  he  had  been  a  regular 
foot  practitioner  for  nearly  six  years." 

You  would  not  forgive  me,  were  I  to  omit  to  mention 
the  Quoit  Club,  or  Barbecue  Club,  which  for  many  years 
used  to  meet  on  Saturdays  at  Buchanan's  Spring  in  a 
grove  on  the  outskirts  of  Richmond.  The  city  has  spread 
over  the  place  of  meeting,  the  spring  has  been  walled  in 
and  the  grove  cut  down,  and  the  memories  of  the  Club 
are  passing  into  legend. 

According  to  an  account  preserved  in  an  article  on 
Chief  Justice  Marshall  in  the  number  for  February,  1836, 
of  the  Southern  Literary  Messenger  (which  I  believe  has 
always  been  considered  as  faithfully  recording  the  senti 
ments  and  the  traditions  of  Virginia),  the  Quoit  Club  was 
coeval  with  the  Constitution  of  the  United  States,  having 
been  organized  in  1788  by  thirty  gentlemen,  of  whom 
Marshall  was  one ;  and  it  grew  out  of  informal  fortnightly 
meetings  of  some  Scotch  merchants  to  play  at  quoits. 
Who  can  doubt  that,  if  those  Scotchmen  had  only  intro 
duced  their  national  game  of  golf,  the  Chief  Justice  would 
have  become  a  master  of  that  game  ? 

There  are  several  picturesque  descriptions  of  the  part 
he  took  at  the  meetings  of  the  Quoit  Club.  It  is  enough 
to  quote  one,  perhaps  less  known  than  the  others,  in 
which  the  artist,  Chester  Harding,  visiting  Richmond 
during  the  session  of  the  State  convention  of  1829-30, 
when  the  Chief  Justice  was  nearly  seventy-five  years 
old,  and  the  last  survivor  of  the  founders  of  the  club, 
tells  us:  "I  again  met  Judge  Marshall  in  Richmond, 
whither  I  went  during  the  sitting  of  the  convention  for 
amending  the  constitution.  He  was  a  leading  member 
of  a  quoit  club,  which  I  was  invited  to  attend.  The  bat- 


John  Marshall  Memorial.  86 

tie-ground  was  about  a  mile  from  the  city,  in  a  beautiful 
grove.  I  went  early,  with  a  friend,  just  as  the  party 
were  beginning  to  arrive.  I  watched  for  the  coming  of 
the  old  chief.  He  soon  approached  with  his  coat  on  his 
arm,  and  his  hat  in  his  hand,  which  he  was  using  as  a 
fan.  He  walked  directly  up  to  a  large  bowl  of  mint- julep, 
which  had  been  prepared,  and  drank  off  a  tumbler  full 
of  the  liquid,  smacked  his  lips,  and  then  turned  to  the 
company  with  a  cheerful  'How  are  you,  gentlemen?' 
He  was  looked  upon  as  the  best  pitcher  of  the  party,  and 
could  throw  heavier  quoits  than  any  other  member  of  the 
club.  The  game  began  with  great  animation.  There 
were  several  ties;  and,  before  long,  I  saw  the  great  Chief 
Justice  of  the  Supreme  Court  of  the  United  States  down 
on  his  knees,  measuring  the  contested  distance  with  a 
straw,  with  as  much  earnestness  as  if  it  had  been  a  point 
of  law;  and  if  he  proved  to  be  in  the  right,  the  woods 
would  ring  with  his  triumphant  shout." 

In  the  summer  and  autumn  of  1831,  the  Chief  Justice 
had  a  severe  attack  of  stone,  which  was  cured  by  lithot 
omy,  performed  by  the  eminent  surgeon,  Dr.  Physick,  of 
Philadelphia,  in  October,  1831.  Another  surgeon,  who 
assisted  at  the  operation,  tells  us  that  his  recovery  was 
in  a  great  degree  owing  to  his  extraordinary  self-posses 
sion,  and  to  the  calm  and  philosophical  views  which  he 
took  of  his  case,  and  of  the  various  circumstances  attend 
ing  it.  Just  before  the  operation,  he  wrote  to  Mr.  Jus 
tice  Story :  "  I  am  most  earnestly  attached  to  the  character 
of  the  department,  and  to  the  wishes  and  convenience  of 
those  with  whom  it  has  been  my  pride  and  my  happiness 
to  be  associated  for  so  many  years.  I  cannot  be  insen 
sible  to  the  gloom  which  lowers  over  us.  I  have  a  re 
pugnance  to  abandoning  you  under  such  circumstances, 


87  Virginia— Address  of  Justice  Horace  Gray. 

which  is  almost  invincible.  But  the  solemn  convictions 
of  my  judgment,  sustained  by  some  pride  of  character, 
admonish  me  not  to  hazard  the  disgrace  of  continuing  in 
office  a  mere  inefficient  pageant."  He  concluded  by  say 
ing  that  he  had  determined  to  postpone  until  the  next 
term  the  question  whether  he  should  resign  his  office. 
After  the  operation,  he  wrote:  "Thank  Heaven,  I  have 
reason  to  hope  that  I  am  relieved.  I  am,  however,  under 
the  very  disagreeable  necessity  of  taking  medicine  con 
tinually  to  prevent  new  formations.  I  must  submit,  too, 
to  a  severe  and  most  unsociable  regimen.  Such  are  the 
privations  of  age."  He  continued  to  perform  the  duties 
of  his  office,  with  undiminished  powers  of  mind,  for 
nearly  four  years  more,  and  ultimately  died,  in  his  eight 
ieth  year,  of  a  disease  of  a  wholly  different  character,  an 
enlarged  condition  of  the  liver. 

There  are  many  testimonies  to  his  great  modesty,  self- 
effacement  and  true  humility,  in  any  company,  whether 
of  friends  or  of  strangers.  Let  me  quote  but  one,  recently 
made  known  to  me  by  the  kindness  of  the  President  of 
your  Supreme  Court  of  Appeals  (a  kinsman  of  Chief 
Justice  Marshall),  and  which,  with  his  permission,  is 
given  in  his  own  words:  "I  have  an  aunt  in  Fauquier 
county,  Miss  Lucy  Chilton,  now  in  her  ninety-first 
year.  I  asked  her  on  one  occasion  if  she  had  known 
Judge  Marshall.  She  replied  that  she  had  spent  weeks 
at  a  time  in  the  same  house  with  him.  I  then  asked  her 
what  trait  or  characteristic  most  impressed  her.  She  re 
plied  without  hesitation :  <  His  humility.  He  seemed  to 
think  himself  the  least  considered  person  in  whatever 
company  he  chanced  to  be.' >:  This  quality  in  him  may 
help  us  to  understand  the  saying,  that  the  great  lawgiver 
and  judge  of  the  Hebrews  —  who,  we  are  told,  "was 


John  Marshall  Memorial.  88 

learned  in  all  the  wisdom  of  the  Egyptians,  and  was 
mighty  in  words  and  in  deeds  "-  —  was  "  very  meek,  above 
all  men  which  were  upon  the  face  of  the  earth." 

Chief  Justice  Marshall  was  a  steadfast  believer  in  the 
truth  of  Christianity  as  revealed  in  the  Bible.  He  was 
brought  up  in  the  Episcopal  Church;  and  Bishop Meade, 
who  knew  him  well,  tells  us  that  he  was  a  constant  and 
reverent  worshipper  in  that  church,  and  contributed  lib 
erally  to  its  support,  although  he  never  became  a  com 
municant.  All  else  that  we  know  of  his  personal  religion 
is  derived  from  the  statements  (as  handed  clown  by  the 
good  bishop)  of  a  daughter  of  the  Chief  Justice,  who 
was  much  with  him  during  the  last  months  of  his  life. 
She  said  that  her  father  told  her  he  never  went  to  bed 
without  concluding  his  prayer  by  repeating  the  Lord's 
Prayer  and  the  verse  beginning,  "  Now  I  lay  me  down  to 
sleep,"  which  his  mother  had  taught  him  when  he  was  a 
child ;  and  that  the  reason  why  he  had  never  been  a  com 
municant  was  that  it  was  but  recently  that  he  had  be 
come  fully  convinced  of  the  divinity  of  Christ,  and  he 
then  "determined  to  apply  for  admission  to  the  com 
munion  of  our  church  —  objected  to  commune  in  private, 
because  he  thought  it  his  duty  to  make  a  public  confes 
sion  of  the  Saviour  —  and,  while  waiting  for  improved 
health  to  enable  him  to  go  to  the  church  for  that  purpose, 
he  grew  worse  and  died,  without  ever  communing." 

His  private  character  cannot  be  more  felicitously  or 
more  feelingly  summed  up  than  in  the  resolutions  drawn 
up  by  Mr.  Leigh,  and  unanimously  adopted  by  the  Bar 
of  this  Circuit,  soon  after  the  death  of  the  Chief  Justice: 
"  His  private  life  was  worthy  of  the  exalted  character  he 
sustained  in  public  station.  The  unaffected  simplicity  of 
his  manners;  the  spotless  purity  of  his  morals;  his  social, 


89  Virginia  — Address  of  Justice  Horace  Gray. 

gentle,  cheerful  disposition;  his  habitual  self-denial,  and 
boundless  generosity  towards  others;  the  strength  and 
constancy  of  his  attachments;  his  kindness  to  his  friends 
and  neighbors;  his  exemplary  conduct  in  the  relations  of 
son,  brother,  husband,  father;  his  numerous  charities;  his 
benevolence  towards  all  men,  and  his  ever  active  benefi 
cence, —  these  amiable  qualities  shone  so  conspicuously 
in  him,  throughout  his  life, that,  highly  as  he  was  respected, 
he  had  the  rare  happiness  to  be  yet  more  beloved." 

Let  me  add  a  few  words  from  the  address  of  Mr.  Will 
iam  Maxwell  before  the  Virginia  Historical  and  Philo 
sophical  Society  on  March  2, 1836,  preserved  in  the  South 
ern  Literary  Messenger:  "He  came  about  amongst  us, 
like  a  father  amongst  his  children,  like  a  patriarch 
amongst  his  people  —  like  that  patriarch  whom,  the  sacred 
Scriptures  have  canonized  for  our  admiration — 'when 
the  eye  saw  him  it  blessed  him ;  when  the  ear  heard  him 
it  gave  witness  to  him ;  and  after  his  words  men  spake 
not  again.' " 

The  earliest  and  most  lifelike  description  that  we  have 
of  his  face  and  figure  is  one  given  by  the  kinsman  who 
was  present  on  the  occasion,  already  mentioned,  of  his 
taking  command  of  a  militia  company  in  1775,  when  not 
quite  twenty  years  of  age :  "  He  was  about  six  feet  high, 
straight  and  rather  slender;  of  dark  complexion,  showing 
little  if  any  rosy  red,  yet  good  health ;  the  outline  of  the 
face  nearly  a  circle,  and,  within  that,  eyes  dark  to  black 
ness,  strong  and  penetrating,  beaming  with  intelligence 
and  good  nature;  an  upright  forehead,  rather  low,  was 
terminated  in  a  horizontal  line  by  a  mass  of  raven-black 
hair  of  unusual  thickness  and  strength ;  the  features  of 
the  face  were  in  harmony  with  this  outline,  and  the  tem 
ples  fully  developed ;  the  result  of  this  combination  was 


John  Marshall  Memorial.  90 

interesting  and  very  agreeable.  The  body  and  limbs  in 
dicated  agility  rather  than  strength,  in  which,  however, 
he  was  by  no  means  deficient."  A  few  words  more  may 
be  quoted,  completing  the  picture:  "He  wore  a  purple 
or  pale-blue  hunting-shirt,  and  trousers  of  the  same  ma 
terial  fringed  with  white.  A  round  black  hat,  mounted 
with  the  bucks- tail  for  a  cockade,  crowned  the  figure 
and  the  man." 

"This  is  a  portrait  to  which,"  adds  Mr.  Binney,  "in 
everything  but  the  symbols  of  the  youthful  soldier,  and 
one  or  two  of  those  lineaments  which  the  hand  of  time, 
however  gentle,  changes  and  perhaps  improves,  he  never 
lost  his  resemblance.  All  who  knew  him  well  will  recog 
nize  its  truth  to  nature." 

Of  all  the  portraits  by  various  artists,  that  which  best 
accords  with  the  above  description,  especially  in  the 
"  eyes  dark  to  blackness,  strong  and  penetrating,  beaming 
with  intelligence  and  good  nature,"  is  one  by  Jarvis 
(perhaps  the  best  American  portrait  painter  of  his  time, 
next  to  Stuart),  which  I  have  had  the  good  fortune  to 
own  for  thirty  years,  and  of  which,  before  I  bought  it,  Mr. 
Middleton,  then  the  clerk  of  the  Supreme  Court,  who  had 
been  deputy  clerk  for  eight  years  under  Chief  Justice 
Marshall,  wrote  me:  "It  is  an  admirable  likeness;  better 
than  the  one  I  have,  which  has  always  been  considered 
one  of  the  best."  This  portrait  was  taken  while  his  hair 
was  still  black,  or  nearly  so;  and,  as  shown  by  the  judi 
cial  robe,  and  by  the  curtain  behind  and  above  the  head, 
was  intended  to  represent  him  as  he  sat  in  court. 

The  most  important  of  the  later  portraits  are  those 
painted  by  Harding  in  1828-30,  and  by  Inman  in  1831, 
with  a  graver  expression  of  countenance,  with  the  hair 
quite  gray,  and  with  deep  lines  in  the  face. 


91  Virginia — Address  of  Justice  Horace  Gray. 

Harding's  portraits  were  evidently  thought  well  of,  by 
the  subject,  as  well  as  by  the  artist.  One  of  them,  after 
wards  bequeathed  by  Mr.  Justice  Story  to  Harvard  Col 
lege,  was  sent  to  him  by  the  Chief  Justice  in  March, 
1828,  with  a  letter  saying,  "I  beg  you  to  accept  my  por 
trait,  for  which  I  sat  in  Washington  to  Mr.  Harding,  to 
be  preserved  when  I  shall  sleep  with  my  fathers,  as  a 
testimonial  of  sincere  and  affectionate  friendship;  "  and 
in  the  same  letter  he  gave  directions  for  paying  Harding 
"  for  the  head  and  shoulders  I  have  bespoke  for  myself." 
Harding's  principal  portrait  of  Marshall  was  painted  in 
1830  for  the  Boston  Athenaeum,  in  whose  possession  it 
still  is;  it  has  the  advantage  of  being  a  full  length,  show 
ing  that  in  his  seventy-fifth  year  he  retained  the  erect 
and  slender  figure  of  his  youth ;  and  the  artist  wrote  of 
it  in  his  autobiography:  "  I  consider  it  a  good  picture.  I 
had  great  pleasure  in  painting  the  whole  of  such  a  man." 

In  man's  careful  portrait,  in  the  possession  of  the  Phila 
delphia  Law  Association,  has  often  been  engraved,  and  is 
perhaps  the  best  known  of  all. 

The  crayon  portrait  in  profile,  drawn  by  St.  Memin 
in  1808,  which  has  always  remained  in  the  family  of  the 
Chief  Justice,  and  been  considered  by  them  an  excellent 
likeness,  and  is  now  owned  by  a  descendant  in  Balti 
more;  the  bust  by  Frazee,  bequeathed  by  Mr.  Justice 
Story  to  Harvard  College,  and  familiarly  known  by 
numerous  casts;  and  that  executed  by  Powers,  by  order 
of  Congress,  soon  after  the  Chief  Justice's  death,  for  the 
Supreme  Court  room  —  all  show  that,  while  his  hair 
grew  rather  low  on  the  forehead,  his  head  was  high  and 
well  shaped,  and  that,  as  was  then  not  unusual,  he  wore 
his  hair  in  a  queue. 

His  dress,  as  shown  in  the  full-length  portrait  by  Hard- 


John  Marshall  Memorial.  92 

ing,  and  as  described  by  his  contemporaries,  was  a  simple 
and  appropriate,  but  by  no  means  fashionable,  suit  of 
black,  with  knee  breeches,  long  stockings,  and  low  shoes 
with  buckles. 

You  may  think,  my  friends,  that  I  have  been  led  on  to 
spend  too  much  time  in  endeavoring  to  bring  before  you 
the  bodily  semblance  of  the  great  Chief  Justice.  Yet 
you  must  admit,  as  he  did  in  his  letter  to  Delaplaine,  that 
portraits  of  eminent  men  are  "  an  object  of  considerable 
interest." 

But,  after  all,  it  is  not  the  personal  aspect  of  a  great 
man,  it  is  his  intellect  and  his  character,  that  have  a  last 
ing  influence  on  mankind.  Ut  vultus  kominum,  ita  simu 
lacra  vultus  imbecilla  ac  mortalia  sunt.  Forma  mentis 
cBterna;  quam  tenere  et  exprimere,  non  per  alienam  ma- 
teriam  et  artem,  sed  tuis  ipse  moribus  possis. 

Brethren  of  the  Bar  of  the  Old  Dominion;  Fellow- 
citizens  of  the  United  States : 

To  whatsoever  professional  duty  or  public  office  we  may 
any  of  us  be  called,  we  can  find,  in  the  long  line  of  eminent 
judges  with  whom  Almighty  Providence  has  blessed  our 
race,  no  higher  inspiration,  no  surer  guide,  than  in  the 
example  and  in  the  teachings  of  JOHN  MAKSHALL. 

NOTE.—  The  pamphlet  edition  of  the  foregoing  address  contains 
the  following  list  of 

SUPREME  COURT  DECISIONS  REFERRED  TO  BY  MR.  JUSTICE  GRAY. 

Bank  of  United  States  v.  Deveaux  (1809),  5  Cranch,  61. 
Boll  man  &  Swartwout,  Ex  parte  (1807),  4  Cranch,  75. 
Boyle  v.  Zacharie  (1832),  6  Peters,  635,  648. 
Brown  v.  Maryland  (1827),  12  Wheaton,  419. 
Chisholm  v.  Georgia  (1793),  2  Dallas,  419. 
Cohens  v.  Virginia  (1821),  6  Wheaton,  264. 


93  Virginia  —  Address  of  Justice  Horace  Gray. 

Dartmouth  College  v.  Woodward  (1819),  4  Wheaton,  518. 

Elmendorf  v.  Taylor  (1825),  10  Wheaton,  152. 

The  Exchange  (1812),  7  Cranch,  116. 

Fletcher  v.  Peck  (1810;,  6  Cranch,  87. 

The  Genesee  Chief  (1851),  12  Howard,  443. 

Gibbons  v.  Ogden  (1824),  9  Wheaton,  1. 

Hans  v.  Louisiana  (1890),  134  U.  S.  1. 

Hollingsworth  v.  Virginia  (1798),  3  Dallas,  378. 

Hope  Insurance  Company  v.  Boardman  (1809),  5  Cranch,  57. 

Hylton  v.  United  States  (1796),  3  Dallas,  171. 

Louisville  Railroad  Company  v.  Letson  (1844),  2  Howard,  497. 

McCulloch  v.  Maryland  (1819),  4  Wheaton,  316. 

Marbury  v.  Madison  (1803),  1  Cranch,  137. 

Martin  v.  Hunter's  Lessee  (1816),  1  Wheaton,  304. 

Ogden  v.  Saunders  (1827),  12  Wheaton,  213. 

Osborn  v.  Bank  of  United  States  (1824),  9  Wheaton,  738. 

Stuart  v.  Laird  (1803),  1  Cranch,  299. 

Sturges  v.  Crowninshield  (1819),  4  Wheaton,  122. 

The  Thomas  Jefferson  (1825),  10  Wheaton,  428. 

United  States  v.  Peters  (1809),  5  Cranch,  115. 

United  States  v.  Wiltberger  (1820),  5  Wheaton,  76. 

Ware  v.  Hylton  (1796),  3  Dallas,  19ft 

Also  the  following  list  of 


AUTHORITIES   CONSULTED   OTHER   THAN   SUPREME    COURT 
DECISIONS. 

Adams,  John.    Works,  vol.  ix.    Boston,  1854. 

Adams,  John  Quincy.    Memoirs,  vols.  viii,  ix.    Philadelphia,  1876. 

Binney,  Horace.     Eulogy  on  Marshall.     Philadelphia,  1835. 

Old  Bar  of  Philadelphia,   p.  83.   Philadelphia,  1859. 
Bradley,   Joseph  P.    St.    Memin's    Portrait  of  Marshall.     Century 

Magazine  of  September,  1889.     New  York,  1889. 
Bryce,  James.    The  American  Commonwealth.     London,  1888. 
Burr,  Aaron.     Trial.     Robertson's  Report;  Philadelphia,  1808. 
Butler,  Charles.     Reminiscences,     vol.  i  (4th  ed.),  p.  133.     London, 

1824, 
Carson,  Hampton  L.     The  Supreme  Court  of  the  United  States.  (3d 

ed.)  Philadelphia,  1892. 


John  Marshall  Memorial.  94 

Cooley,  Thomas  M.    The  Federal  Supreme  Court.     Lecture  at  Uni 
versity  of  Michigan  in  1889.     New  York,  1890. 

Flanders,  Henry.    Lives  of  the  Chief  Justices.    Philadelphia,  1881. 
Gibbs,  George.     Administrations  of  Washington  and  John  Adams. 

vol.  ii,  p.  314    New  York,  1846. 
Grigsby,  Hugh  B.    Discourse  on  Virginia  Convention  of  1829-30. 

Richmond,  1853. 
Harding,   Chester.     Autobiographical    Sketch.     Cambridge,   1886. 

Boston,  1890. 

Henry,  Patrick.    Life  by  William  Wirt  Henry.    New  York,  1891. 
Hitchcock,  Henry.   Constitutional  Development  of  the  United  States 
as  influenced  by  Marshall.    Lecture  at  University  of  Michi 
gan  in  1889.    New  York,  1890. 

Hopkinson,  Joseph.     Memoir    of    Marshall.     Brockenbrough's  Re 
ports  of  Marshall's  Decisions  in  Circuit  Court,  voL  i,  p.  ix. 
Philadelphia,  1837. 
Jay,  John.     Life  by  William  Jay.     New  York,  1833. 

Life  by  George  Pellew.     Boston,  1890. 

Law  Reports,  Probate  Division,    vol.  v,  pp.  197,  208.     London,  1880. 
Magruder,  Allan  B.     Life  of  Marshall.     Boston,  1885. 
Marshall,  John.     Letters  to  John  Adams.    In  possession  of  Adams 

family  at  Quincy.     MSS. 

Letters  to  William  Cushing.    In  possession  of  Gen 
eral  Charles  J.  Paine  of  Boston.    MSS. 
Letter    to  James   Delaplaine.     Columbus,    Ohio; 

published  by  J.  H.  Riley  &  Co.,  1848. 
Letters  to  Joseph  Story.     Massachusetts  Historical 

Society  Proceedings.     November,  1900. 
Life  of  Washington.     Philadelphia,  1804-7;  (3d  ed.) 

Philadelphia,  1833. 

Speech  in  Congress  on  Case  of  Jonathan  Robbins. 

Philadelphia,  1800.     Wheaton's  Reports  of  Cases 

in  Supreme  Court,  vol.  v,  Appendix,  New  York, 

1820. 

Meade,  William.     Old  Churches  and  Families  of  Virginia.    voL  i, 

p.  30;  vol.  ii,  pp.  216-224.     Philadelphia,  1872. 
New  York  Review.    Article  on  Marshall,     vol.  iii,  p.  328.    New  York, 

4838. 

Phelps,  Edward  J.     Ad  dress  on  Marshall.  Philadelphia,  1879.  Ameri 
can  Bar  Association  Reports,  vol.  ii. 


95  Virginia— Address  of  Justice  Horace  Gray. 

Physick,  Philip  S.    Memoir  by  J.  Randolph,  M.  D.    pp.  96-101.  Phila 
delphia,  1839. 
Rawle,  William  H.    Oration   on  Unveiling  of  Marshall's  Statue. 

United  States  Reports,  vol.  cxii,  Appendix. 
Senate  Executive  Journal,  1789-1837.    Washington,  1828-37. 
Southern  Literary  Messenger.    Articles  on  Marshall.    voL  ii,  pp.  183, 

258,  260?  317.     Richmond,  1836. 

State  Department.    Commissions.     1789-1836.    MSS. 
Story,  Joseph.     Article  on   Marshall.     North  American  Review  of 

January,  1828.     Boston,  1828. 

Biography  of  Marshall.    National  Portrait  Gallery 
of  Distinguished  Americans,  vol.  i,  pt.  iii.    Phila 
delphia,  1833-34.    Story's  Miscellaneous  Writings. 
Boston,  1835. 
Commentaries  on  the  Constitution  of  the  United 

States,    Boston,  1833. 

Discourse  on  Marshall.     Boston,  1835.    Story's  Mis 
cellaneous  Writings.     Boston,  1852. 
Life  and  Letters  by  William  W.  Story.    Boston,  185L 
Taney,  Roger  B.    Life  by  Samuel  Tyler.    Baltimore,  1872. 
Tucker,  St.  George.    Edition  of  Blackstone's  Commentaries.    voL  i, 

pt.  i,  Appendix,  p.  294.    Philadelphia,  1803. 
Van  Santvoord,  George.   Lives  of  the  Chief  Justices.  (2d  ed.)  Albany, 

1882. 

Virginia  Bar.     Resolutions  on  Marshall's  Death.    Brockenbrough's 
Reports  of  Marshall's  Decisions  in  Circuit  Court,  vol.  i,  p.  xvii, 
Philadelphia,  1837. 
Virginia  Convention  on  Federal    Constitution,  1788.    Petersburg, 

1788.    3  Elliot's  Debates  (3d  ed.),  Washington,  1836. 
Virginia  Convention  on  State  Constitution,  1829-30.    pp.  616,  619, 

871,  872.    Richmond,  1830. 
Waite,  Morrison  R    Address  on  Unveiling  of  Marshall's  Statua 

United  States  Reports,  vol.  cxii,  Appendix. 
Washington,  George.    Writings.    (Sparks's  ed.)  vol.  x;  Boston,  1836. 

(Ford's  ed.),  vol.  xi;  New  York,  1891. 
Wirt,  William.    Letters  of  a  British  Spy.    Richmond,  1803 ;  (10th  ed.) 

New  York,  1832. 
Life  by  John  P.  Kennedy.    Philadelphia,  1849. 


STATE  OF  MAINE. 

The  tenth  annual  meeting  of  the  State  Bar  Association 
of  Maine  was  held  in  the  Senate  Chamber  at  Augusta  on 
Monday,  February  4, 1901,  at  three  o'clock  p.  m.,  in  order, 
among  other  things,  to  celebrate  the  centennial  of  the 
accession  of  Chief  Justice  Marshall  to  the  bench  of  the 
Supreme  Court  of  the  United  States.  Hon.  Albert  M. 
Spear  of  Gardiner,  Vice-President  of  the  Association,  pre 
sided  in  the  absence  of  the  President.1 

Mr.  White's  Introductory  Address. 

In  the  address  of  the  President,  Hon.  Wallace  H.  White 
of  Lewiston,  which  was  read  by  Mr.  Spear,  it  was  said : 

As  I  have  read  and  reflected  upon  the  life  and  char 
acter  of  John  Marshall,  I  have  been  profoundly  impressed 
with  the  thought  of  how  true  it  is  that  Providence  seems 
to  raise  up  great  men  for  great  occasions.  The  history 
of  the  world  is  full  of  illustrations  of  this  over-ruling 
Providence  in  the  affairs  of  men.  There  is  always  in 
great  political  events,  or  on  the  fields  of  military  glory 
or  renown,  something  to  stir  the  heart  and  to  excite  the 
feelings  and  the  passions,  but  the  crowning  glory  of  Mar 
shall's  life  was  in  a  field  of  human  activity  which  makes 
no  appeal  to  the  feelings  or  to  sentiment. 

For  nearly  thirty-five  years  of  his  life  he  presided  over 

1 A  full  account  of  the  proceedings  may  be  found  in  the  official 
publication  entitled:  "Proceedings  of  the  Tenth  Annual  Meeting  of 
the  Maine  State  Bar  Association  held  at  Augusta,  Maine,  February  4, 
1901.  Augusta:  Press  of  Charles  E.  Nash,  1901." 


97  Maine— Mr.  While's  Address. 

the  Supreme  Court  of  the  United  States  at  a  time  when 
our  Constitution  was  an  untried  experiment  in  the  history 
of  nations,  when  its  very  adoption  was  looked  upon  by 
many  honest,  able  and  sincere  men  as  marking  the  de 
struction  of  our  liberties,  even  as  now  the  questions  grow 
ing  out  of  the  acquisition  of  territory  following  the 
Spanish  war  is  looked  upon  by  some  of  our  public  men  as 
dangerous  to  the  safety  of  our  beloved  country,  and  as 
even  threatening  the  perpetuity  of  our  institutions. 

Mr.  John  Fiske  speaks  of  Marshall  as  "  Second  to  none 
among  all  the  illustrious  jurists  of  the  English  race." 
And  of  his  work  in  interpreting  the  Constitution,  he 
says:  "It  was  thus  that  the  practical  working  of  our 
Federal  Constitution  during  the  first  thirty  years  of  the 
nineteenth  century  was  swayed  to  so  great  an  extent  by 
the  profound  and  luminous  decisions  of  Chief  Justice 
Marshall  that  he  must  be  assigned  a  foremost  place 
among  the  founders  of  our  Federal  Union."  However 
entrancing  this  theme,  it  is  not  for  me  to  occupy  your 
time  with  any  reflections  and  observations  of  mine  upon 
the  presence  of  such  a  man  as  John  Marshall  as  the  Chief 
Justice  of  the  Supreme  Court  at  so  trying  and  important 
a  period  in  the  development  of  constitutional  govern 
ment  in  this  nation. 

We  have  with  us  to-day  a  distinguished  lawyer  who 
long  practised  in  the  courts  of  our  State,  winning  for 
himself  a  reputation  for  learning  and  ability  in  the  pro 
fession  which  none  have  excelled  and  few  equaled.  He 
has  been  called  from  the  practice  of  the  profession  to 
occupy  a  distinguished  position  as  one  of  the  Judges  of 
the  Circuit  Court  of  the  United  States,  and  it  is  with 
great  pleasure  that  I  present  to  you  as  the  orator  of  the 
day,  the  Honorable  William  L.  Putnam,  of  Portland. 
VOL.  1  —  7 


John  Marshall  Memorial.  98 

Address  of  William  L.  Putnam. 

Forty-five  years  ago  this  winter,  through  some  sin 
gular  coincidences,  it  became  necessary  for  me,  although 
not  twenty-one  years  of  age,  to  call  to  order  the  House 
of  Representatives  of  this  State,  and  to  preside  over  it 
until  it  completed  a  temporary  organization  in  the  absence 
of  the  Speaker  and  the  Clerk.  The  whole  scene  is  photo 
graphed  on  my  memory  with  the  same  distinctness  as 
though  it  occurred  but  yesterday.  The  chaplain  who 
offered  prayer  became  the  reverend  Bishop  of  the  Diocese 
of  Michigan.  By  some  happening,  the  two  gentlemen 
who  reported  for  the  local  papers  at  Augusta  for  both 
the  Senate  and  the  House  sat  at  that  time,  one  at  my 
right  and  one  at  my  left,  at  the  miniature  desks  then  re 
served  for  such  uses.  One  became  the  candidate  of  a 
great  party  for  the  Presidency,  and  the  other  the  Chief 
Justice  of  the  United  States.  These,  except  the  Chief 
Justice,  and,  also,  the  then  Governor  of  the  State,  fear 
less  and  able,  the  distinguished  President  of  the  Senate, 
afterwards  more  distinguished  as  Senator  and  Secretary 
of  the  Treasury,  the  honored  Speaker  of  the  House,  and 
the  long  array  of  the  many  eminent  gentlemen  who  held 
seats  in  the  two  branches  of  that  unrivaled  Legislature, 
have  passed  to  their  reward,  and  the  generations  of  men 
have  been  re-created;  yet  the  same  hills  surround  us,  the 
same  blue  sky  is  over  our  heads,  and  the  same  flag  waves 
from  the  dome  of  this  capitol.  Thus  we  have,  in  micro 
cosm,  the  greater  series  of  events  the  beginnings  of 
which  we  are  honoring  to-day.  Through  all  the  muta 
tions  which  have  occurred  in  the  affairs  of  our  nation, 
with  all  the  upheavals  which  have  shaken  and  re-created 
Europe,  the  great  principles  of  constitutional  law,  enun- 


99  Maine  — Address  of  William  L.  Putnam. 

ciated  by  John  Marshall  nearly  a  century  ago,  remain  as 
fixed  as  the  fundamental  rules  of  right  and  justice. 

Marshall  was  born  in  1755.  He  was  educated  at  the 
domestic  hearth  until  he  entered  the  Eevolutionary  army, 
where  he  rendered  good  service;  and  afterwards,  begin 
ning,  indeed,  while  in  the  army,  he  laid  at  Kichmond 
the  foundations  of  his  legal  knowledge.  He  held  many 
political  offices.  He  took  part  in  the  Virginia  Constitu 
tional  Convention.  As  a  member  of  Congress,  he  offered 
the  famous  resolutions  of  General  Lee:  "Washington, 
first  in  peace,  first  in  war,  and  first  in  the  hearts  of  his 
countrymen!"  John  Adams  made  him  Secretary  of 
State,  and  afterwards,  on  January  31, 1801,  commissioned 
him  as  Chief  Justice  of  the  United  States.  His  French 
envoyship  marked  the  critical  stage  in  that  violent  polit 
ical  rending  apart  which  preceded  the  administration  of 
Jefferson.  As  unpopular  as  was  John  Adams  in  many 
sections,  the  insults  Talleyrand  heaped  on  our  envoys 
stirred  a  universal  sentiment  of  patriotism,  which,  for 
the  time  being,  swept  away  Jeffersonianism,  gave  birth 
to  "Hail  Columbia,"  and  received  Marshall  on  his  return 
from  Paris  with  loud  acclaim.  All  this,  however,  was 
soon  succeeded  by  the  Kentucky  resolutions,  devised  by 
Jefferson,  than  which  nothing  could  have  been  more  hos 
tile  to  those  who,  like  Marshall,  shared  the  deeply  seated 
sentiments  of  Washington.  It  was  when  the  wave  which 
had  floated  the  administration  of  Adams  had  receded, 
that  Marshall  was  made  Chief  Justice,  in  open  defiance  of 
Jefferson  and  his  supporters,  and  subject  to  their  bitter 
and  determined  hostility.  It  was,  however,  the  issues  of 
the  Jeffersonian  political  struggle  which  made  him  monu 
mental. 

The  most  trustworthy  as  well  as  the  most  objective 


John  Marshall  Memorial.  100 

characterizations  of  Marshall  are  the  contemporary  pic 
tures  drawn  by  Joseph  Story.  In  a  letter  from  Washing 
ton  in  1808,  Judge  Story  described  his  physical  traits 
vividly: 

"Marshall  is  of  a  tall,  slender  figure,  not  graceful  nor 
imposing,  but  erect  and  steady.  His  hair  is  black,  his 
eyes  small  and  twinkling,  his  forehead  rather  low,  but  his 
features  are  in  general  harmonious.  His  manners  are 
plain,  yet  dignified;  and  an  unaffected  modesty  diffuses 
itself  through  all  his  actions.  His  dress  is  very  simple, 
yet  neat;  his  language  chaste,  but  hardly  elegant;  it  does 
not  flow  rapidly,  but  it  seldom  wants  precision.  In  con 
versation  he  is  quite  familiar,  but  is  occasionally  embar 
rassed  by  a  hesitancy  and  drawling.  His  thoughts  are 
always  clear  and  ingenious,  sometimes  striking,  and  not 
often  inconclusive;  he  possesses  great  subtility  of  mind,  but 
it  is  only  occasionally  exhibited.  I  love  his  laugh, —  it  is 
too  hearty  for  an  intriguer, —  and  his  good  temper  and 
unwearied  patience  are  equally  agreeable  on  the  bench 
and  in  the  study.  His  genius  is,  in  my  opinion,  vigorous 
and  powerful,  less  rapid  than  discriminating,  and  less 
vivid  than  uniform  in  its  light.  He  examines  the  intri 
cacies  of  a  subject  with  calm  and  persevering  circumspec 
tion,  and  unravels  the  mysteries  with  irresistible  acute- 
ness." 

Soon  after  Marshall's  death,  Story  thus  analyzed  his 
character: 

"  When  can  we  expect  to  be  permitted  to  behold  again 
so  much  moderation  united  with  so  much  firmness,  so 
much  sagacity  with  so  much  modesty,  so  much  learning 
with  so  much  experience,  so  much  solid  wisdom  with  so 
much  purity,  so  much  of  everything  to  love  and  admire, 
with  nothing,  absolutely  nothing,  to  regret  ?  What,  in- 


101  Maine— Address  of  William  L.  Putnam. 

deed,  strikes  us  as  the  most  remarkable  in  his  whole  char 
acter,  even  more  than  his  splendid  talents,  is  the  entire 
consistency  of  his  public  life  and  principles.  There  is 
nothing  in  either  which  calls  for  apology  or  concealment. 
Ambition  has  never  seduced  him  from  his  principles,  nor 
popular  clamor  deterred  him  from  the  strict  performance 
of  duty.  Amid  the  extravagancies  of  party  spirit,  he  has 
stood  with  a  calm  and  steady  inflexibility;  neither  bend 
ing  to  the  pressure  of  adversit}^,  nor  bounding  with  the 
elasticity  of  success.  He  has  lived  as  such  a  man  should 
live  (and  yet,  how  few  deserve  the  commendation  ! ),  by 
and  with  his  principles.  "Whatever  changes  of  opinion 
have  occurred,  in  the  course  of  his  long  life,  have  been 
gradual  and  slow;  the  results  of  genius  acting  upon  larger 
materials,  and  of  judgment  matured  by  the  lessons  of  ex 
perience.  If  we  were  tempted  to  say,  in  one  word,  what 
it  was  in  which  he  chiefly  excelled  other  men,  we  should 
say  in  wisdom;  in  the  union  of  that  virtue,  which  has 
ripened  under  the  hardy  discipline  of  principles,  with  that 
knowledge,  which  has  constantly  sifted  and  refined  its 
old  treasures,  and  as  constantly  gathered  new." 

"  But,  interesting  as  it  is  to  contemplate  such  a  man  in 
his  public  character  and  official  functions,  there  are  those 
who  dwell  with  far  more  delight  upon  his  private  and 
domestic  qualities.  There  are  few  great  men,  to  whom 
one  is  brought  near,  however  dazzling  may  be  their  tal 
ents  or  actions,  who  are  not  thereby  painfully  diminished 
in  the  estimate  of  those  who  approach  them.  The  mist 
of  distance  sometimes  gives  a  looming  size  to  their  char 
acter  ;  but  more  often  conceals  its  defects.  To  be  amiable, 
as  well  as  great;  to  be  kind,  gentle,  simple,  modest  and 
social,  and  at  the  same  time  to  possess  the  rarest  endow 
ments  of  mind,  and  the  warmest  affections,  is  a  union  of 


John  Marshall  Memorial.  102 

qualities  which  the  fancy  may  fondly  portray,  but  the 
sober  realities  of  life  rarely  establish.  Yet  it  may  be 
affirmed  by  those  who  have  had  the  privilege  of  intimacy 
with  Mr.  Chief  Justice  Marshall,  that  he  rises,  rather  than 
falls,  with  the  nearest  survey;  and  that  in  the  domestic 
circle  he  is  exactly  what  a  wife,  a  child,  a  brother  and  a 
friend  would  most  desire.  In  that  magical  circle,  admira 
tion  of  his  talents  is  forgotten  in  the  indulgence  of  those 
affections  and  sensibilities  which  are  awakened  only  to  be 
gratified." 

Marshall  died  on  the  sixth  of  July,  1835.  In  the  pre 
vious  month,  Story,  anticipating  his  end,  wrote  of  him  in 
most  expressive  terms:  "  I  shall  never  see  his  like  again! 
His  gentleness,  his  affectionateness,  his  glorious  virtues, 
his  unblemished  life,  his  exalted  talents,  leave  him  with 
out  a  rival  or  a  peer." 

As  these  expressions  cover  alike  personal  traits  and 
judicial  attainments  and  powers,  we  will  not  venture  to 
touch  with  our  brush  this  complete  portrait,  painted  by 
the  master  hand ;  but  we  will  briefly  point  out  the  per 
manency  of  the  victory  which  Marshall  won. 

As  we  have  already  suggested,  his  struggle  was  against 
Jeffersonianism ;  and  here  we  will  define  what  we  mean 
by  Jeffersonianism  for  the  purpose  of  this  address.  We 
lay  aside  those  fictitious  issues,  made  through  misunder 
standings  or  misapprehensions  of  the  position  of  the 
Constitutionalists,  including  Washington  and  Marshall. 
We  also  lay  aside  Jefferson's  enormous  contributions  to 
the  general  leavening  of  the  lump,  as  to  which  nothing 
distinctly  Jeffersonian  remains,  and  as  to  which  the  ini 
tiatory  movements,  as  usually  happens,  were  like  the 
flood  which  precedes  the  visible  turning  of  the  tide ;  so 
that  what  is  added  by  this  individual  or  that  one  is  not 


103  Maine— Address  of  William  L.  Putnam. 

computable.  We  limit  our  definition  to  that  class  of 
theories  which  were  peculiar  to  the  Virginia  cabal,  and 
which  found  expression  in  the  Kentucky  Resolutions,  and 
in  the  action  of  the  Court  of  Appeals  of  Virginia,  defy 
ing  the  mandate  of  the  Supreme  Court  of  the  United 
States.  All  these,  so  far  as  the  Federal  courts  are  con 
cerned,  were,  in  effect,  crushed  in  1816,  under  the  judicial 
presidency  of  Marshall,  in  the  famous  judgment  in  Martin 
against  Hunter.  This  Jefferson ianism  was,  indeed,  nulli 
fication.  In  1822,  Story,  though  he  began  as  a  Jeffer- 
sonian  Republican,  writes:  "Mr.  Jefferson  stands  at  the 
head  of  the  enemy  of  the  Judiciary,-  and  I  doubt  not 
will  leave  behind  him  a  numerous  progeny  bred  in  the 
same  school."  Jefferson  confessed  this  himself  in  his 
letter  to  Ritchie,  wherein  he  wrote:  " The  judiciary  of 
the  United  States  is  a  subtle  corps  of  sappers  and  miners, 
constantly  working  underground  to  undermine  the  foun 
dations  of  our  confederated  fabric."  "An  opinion  is 
huddled  up  in  conclave,  perhaps  by  a  majority  of  one, 
delivered  as  if  unanimous,  and  with  the  silent  acquies 
cence  of  lazy  and  timid  associates,  by  a  crafty  chief  judge 
who  sophisticates  the  law  to  his  mind  by  the  turn  of  his 


own  reasoning." 


Jefferson's  hostility  betrayed  Marshall  into  his  only 
unjudicial  act  in  Marbury  against  Madison,  where  the 
court  went  as  far  beyond  its  jurisdiction  as  it  afterwards 
did  in  the  case  of  Dred  Scott.  Of  this,  McMaster,  in  his 
History  of  the  People  of  the  United  States,  says:  "The 
Court  and  the  President  were  at  war.  The  issue  was 
promptly  accepted,  and  Chief  Justice  Marshall  hurled 
back  a  defiance  from  the  Supreme  Bench.  The  oppor 
tunity  for  this  defiance  was  afforded  by  the  famous  case 
of  Marbury  against  Madison."  "  When  Jefferson  read 


John  Marshall  Memorial.  104 

the  decision  he  was  more  incensed  against  the  Court  than 
ever.  The  bold  language  in  which  the  Chief  Justice  had 
defined  the  Executive  power,  had  set  forth  the  Executive 
duties,  had  accused  the  President  of  violating  a  vested 
legal  right,  above  all,  the  unusual  way  in  which  the  de 
cision  had  been  made,  could  mean  nothing  else  than  de 
fiance."  "Jefferson  justly  felt  that  John  Marshall  had 
openly  defied  him.  His  friends  shared  this  feeling,  and 
went  forward  more  eagerly  than  ever  in  their  new  at 
tack  on  the  last  remnant  of  Federal  power." 

To  see  is  to  believe;  and  so  Henry  Adams,  in  describ 
ing  the  scene  when  Marshall  administered  the  oath  of 
office  to  Jefferson  at  his  first  inauguration,  brings  out  the 
issues  between  them  in  the  sharpest  lines:  "In  this  first 
appearance  of  John  Marshall  as  Chief  Justice  to  admin 
ister  the  oath  of  office  lay  the  dramatic  climax  of  the  in 
auguration.  The  retiring  President,  acting  for  what  he 
supposed  to  be  the  best  interests  of  the  country,  by  one 
of  his  last  acts  of  power,  deliberately  intended  to  perpet 
uate  the  principles  of  his  administration,  placed  at  the 
head  of  the  judiciary,  for  life,  a  man  as  obnoxious  to 
Jefferson  as  the  bitterest  New  England  Calvinist  could 
have  been ;  for  he  belonged  to  that  class  of  conservative 
Virginians  whose  devotion  to  Washington,  and  whose 
education  in  the  common  law,  caused  them  to  hold  Jef 
ferson  and  his  theories  in  antipathy.  The  new  President 
and  his  two  Secretaries  were  political  philanthropists, 
bent  on  restricting  the  powers  of  the  national  government 
in  the  interests  of  human  liberty.  The  Chief  Justice,  a 
man  who  in  grasp  of  mind  and  steadiness  of  purpose  had 
no  superior,  perhaps  no  equal,  was  bent  on  enlarging  the 
powers  of  government  in  the  interests  of  justice  and  na 
tionality.  As  they  stood  face  to  face  on  this  threshold 


105  Maine — Address  of  William  L.  Putnam. 

of  their  power,  each  could  foresee  that  the  contest  be 
tween  them  would  end  only  with  life." 

But  Jeffersonianism,  as  it  came  at  issue  with  Marshall, 
died  before  the  close  of  Jefferson's  first  administration. 
Its  coffin  was  made  by  Jackson  in  his  struggle  against 
Calhoun,  and  it  was  buried  in  the  Civil  War,  while  Mar 
shall's  work  endures  to  the  day  of  this  one  hundredth 
anniversary.  Jefferson  had  both  the  sword  and  the  purse, 
while  Marshall  had  neither.  Marshall  could  appeal  only  to 
the  sober  thought  of  the  country,  commencing  his  appeals 
at  a  period  when  the  Federal  courts  were  attacked  by  a 
fierce  and  continued  tempest,  sweeping  over  the  hills  and 
through  the  valleys  with  a  volume  and  persistency  never 
since  equaled.  Nevertheless,  McMaster  writes  of  Jeffer 
son's  re-election,  when  the  Federalists  secured  but  fourteen 
electoral  votes :  "  The  great  mass  of  the  men  who,  in  1800, 
voted  for  Adams,  could  in  1804  see  no  reason  whatever  for 
voting  against  Jefferson.  Scarcely  a  Federal  institution 
was  missed.  Not  a  Federal  principle  had  been  condemned. 
They  saw  the  debt,  the  bank,  the  navy  still  preserved ;  they 
saw  a  broad  construction  of  the  Constitution,  a  strong 
government  exercising  the  inherent  powers  of  sover 
eignty,  paying  small  regard  to  the  rights  of  States,  and 
growing  more  and  more  national  day  by  day,  and  they 
gave  it  a  hearty  support,  as  a  government  administered 
on  the  principles  for  which,  ever  since  the  Constitution 
was  in  force,  they  had  contended." 

This  was  the  demonstration  of  an  early  reaction  in 
favor  of  the  permanent  acknowledgment  of  the  constitu 
tional  principles  maintained  by  Marshall,  whose  power 
and  success  in  perpetuating  them  we  formally  recognize 
to-day.  During  the  century,  Europe  has  been  constitu 
tionally  revolutionized,  and  the  kaleidoscope  of  its  map 


John  Marshall  Memorial.  106 

has  been  completely  changed.  Old  flags  have  disap 
peared,  and  new  flags,  to  some  extent,  have  taken  their 
places.  The  United  States,  also,  have  passed  through 
the  throes  of  one  of  the  greatest  civil  strifes  of  modern 
times;  yet  the  language  of  the  Supreme  Court,  as  uttered 
through  Chief  Justice  Waite,  Mr.  Justice  Miller,  and 
other  Justices  who  have  spoken  for  it  subsequently  to  all 
these  great  convulsions,  repeats  constantly  what  was  said 
by  Marshall.  A  comparison  carefully  made,  and  stated 
in  a  summary  manner,  between  the  stability  of  constitu 
tional  principles  in  the  United  States  during  the  last 
century,  and  their  instability  elsewhere  in  the  civilized 
world,  leaves  a  conviction  which  startles  all  superficial 
understandings  in  reference  thereto. 

It  is  said  the  Constitution  has  been  changed  in  its  es 
sential  features  by  amendments.  An  amendment  is  con 
stitutional;  and,  therefore,  we  might  set  up  a  technical 
answer  to  this.  But  we  put  it  on  broader  grounds.  An 
amendment  to  the  Constitution  in  violation  of  its  funda 
mental  principles  would  be,  in  every  just  sense,  an  essen 
tial  change;  but  .none  of  that  nature  have  been  made. 
The  earlier  amendments  were  in  truth  a  part  of  the  orig 
inal  Constitution.  Then  came  two  relating  merely  to 
matters  of  detail.  Afterwards  came  those  which  grew 
out  of  the  Civil  War;  but  which  constituted  a  natural 
development  of  the  great  principles  of  the  Constitution. 
Take  the  amendment  abolishing  slavery !  It  did  little 
more  than  recognize  an  existing  condition  of  things. 
But  we  think  a  fair  reading  of  the  history  of  the  consti 
tutional  period  satisfies  that,  between  the  express  threat 
against  the  slave  trade  on  the  ocean  at  the  East  and  the 
Ordinance  of  1787  on  the  West,  the  fathers  considered 
that  they  had  so  shut  in  slavery  on  the  front  and  on  the 


107  Maine — Address  of  William  L.  Putnam. 

rear  that,  in  time,  it  would  die  for  want  of  food.  The 
expansion  of  the  slave  power  which  resulted  in  the  war 
and  in  the  latest  constitutional  amendments  was  not  in 
their  contemplation ;  and  when,  as  the  consequence  thereof, 
slavery  was  abolished,  the  country  did  not  depart  from 
the  underlying  sentiment  of  the  Constitution,  but  oscil 
lated  back  to  it.  So  also  those  amendments  prohibiting 
the  States  from  jeopardizing  the  life,  liberty  and  prop 
erty  of  our  fellow-citizens !  These  were  simply  the  ap 
plication  to  the  States  of  the  great  civil  guaranties  which 
the  Constitution  originally  demanded  from  the  Federal 
government. 

Let  us  look  at  the  great  sanctions  in  behalf  of  liberty 
which  we  find  in  the  Constitution ;  the  division  into  three 
great  Departments,  the  executive,  the  legislative,  and  the 
judicial;  the  judicial  power  made  independent  and  placed 
beyond  the  control  of  faction;  the  veto  power;  the  habeas 
corpus;  the  prohibition  of  ex  post  facto  laws,  and  of  all 
laws  for  the  deprivation  of  life,  liberty  or  property  with 
out  due  process;  all  the  provisions  against  discriminations 
in  favor  of  States  or  sections;  the  protection  thrown 
around  those  charged  with  crime;  the  security  of  trial  by 
jury;  the  right  to  the  enjoyment  everywhere  of  the  privi 
leges  and  immunities  of  citizens  of  the  several  States ;  these 
were  the  great  guarantees  of  the  Constitution !  We  ask 
you,  whether,  after  the  lapse  of  a  century,  they  do  not 
all  shine  to-day  like  the  constellations?  The  builders  of 
our  Constitution  had  not  been  without  practical  experi 
ence.  Almost  every  State,  at  the  time  the  Federal  Con 
stitutional  Convention  met,  had  a  written  constitution, 
which  had  the  great  guarantees  of  which  we  have  spoken. 
But  with  regard  to  the  relations  of  the  States  to  the  Fed 
eral  government,  they  trod  a  path  never  blazed.  On  the 


John  Marshall  Memorial.  108 

one  hand,  they  came  together  to  make  a  more  perfect 
Union ;  on  the  other,  they  did  not  forget  that  the  towns 
and  the  individual  colonies  had  been  able  to  meet  suc 
cessfully,  first  the  tyranny  of  Great  Britain,  exercised 
through  civil  authorities,  and,  afterwards,  her  armed 
forces.  The  two  were  at  different  poles,  and  were  to 
be  counterbalanced.  The  machinery  for  this  was  neces 
sarily  experimental.  It  was  not  possible  that  it  would 
not  oscillate.  But,  whenever  here  we  take  the  great 
landmarks  set  by  the  Supreme  Court,  whose  decisions 
ultimately  control,  both  directly  and  by  appealing  to  the 
hearts  and  good  sense  of  the  people,  they  stand  as  they 
always  stood.  Chief  Justice  Waite,  speaking  in  behalf  of 
the  Supreme  Court  in  1876,  said: 

"  The  government  thus  established  and  defined  is  to 
some  extent  a  government  of  the  States  in  their  political 
capacity.  It  is  also,  for  certain  purposes,  a  government 
of  the  people.  Its  powers  are  limited  in  number,  but 
not  in  degree.  "Within  the  scope  of  its  powers,  as 
enumerated  and  defined,  it  is  supreme  and  above  the 
States;  but  beyond,  it  has  no  existence.  It  was  erected 
for  special  purposes,  and  endowed  with  all  the  powers 
necessary  for  its  own  preservation  and  the  accomplish 
ment  of  the  ends  its  people  had  in  view.  It  can  neither 
grant  nor  secure  to  its  citizens  any  right  or  privilege  not 
expressly  or  by  implication  placed  under  its  jurisdiction. 
The  people  of  the  United  States  resident  within  any 
State  are  subject  to  two  governments:  one  State,  and  the 
other  National;  but  there  need  be  no  conflict  between 
the  two.  The  powers  which  one  possesses  the  other  does 
not.  They  are  established  for  different  purposes  and  have 
separate  jurisdictions.  Together  they  make  one  whole, 
and  furnish  the  people  of  the  United  States  with  a  com- 


109  Maine— Address  of  William  L.  Putnam. 

plete  government,  ample  for  the  protection  of  all  their 
rights  at  home  and  abroad." 

Mr.  Justice  Miller,  in  his  address  at  the  semi-centennial 
of  the  University  of  Michigan  in  1887,  in  closing  his  com 
parison  of  the  decisions  of  the  Supreme  Court  since  the 
War  of  the  Kebellion  with  those  before,  said :  "  The  neces 
sity  of  the  great  powers,  conceded  by  the  Constitution 
originally  to  the  Federal  government,  and  the  equal  ne 
cessity  of  the  autonomy  of  the  States  and  their  power  to 
regulate  their  domestic  affairs,  remain  as  the  great  feat 
ures  of  our  complex  form  of  government." 

Everything  thus  said  only  echoes  Marshall  and  his 
associates.  Personal  theories  have  nothing  to  do  with 
historical  questions,  but  we  are  persuaded  that  while, 
in  view  of  the  great  and  rapid  growth  of  our  affairs,  we 
have  been  impatient  at  the  lack  of  the  restraints  of  law, 
and  have,  therefore,  appealed  to  the  stronger  power,  yet, 
as  our  interests  become  settled,  the  distinctive  forces  of 
the  Federal  government  and  the  several  States  will  be 
more  thoroughly  valued,  and  we  will  adhere  the  more 
closely  to  the  fundamental  sentiment  which  underlies  our 
composite  political  structure. 

It  is  said  that  certain  usages  have  intervened,  that  cer 
tain  practices  have  grown  up,  which  are  additional  to  the 
Constitution,  and  which,  in  some  sense,  have  avoided  its 
purposes.  We  cannot  to-day  follow  this  topic  through. 
You  recall  the  question  of  the  purchase  of  Louisiana,  and 
the  questions  of  local  government  which  its  acquisition 
temporarily  presented.  Whatever  has  been  said  concern 
ing  them,  one  thing  is  certain:  In  the  end  no  funda 
mental  right  guaranteed  by  the  Constitution  was  dimin 
ished  thereby.  On  the  other  hand,  the  borders  have 
been  extended  within  which  its  principles  have  effect. 


John  Marshall  Memorial.  110 

Washington,  as  you  recollect,  in  his  Farewell  Address, 
deprecated  a  foreign  policy  for  the  United  States  as 
those  words  are  commonly  understood.  Nothing  in  the 
Constitution,  either  in  the  preamble  or  the  text,  indicates 
anything  more  than  a  desire  to  secure  internal  happiness 
and  prosperity,  or  any  purpose  of  aggrandizement,  or  of 
impressing  ourselves  on  other  nations  by  force  or  diplo 
macy.  Therefore,  Washington  laid  down  the  cardinal 
principles  to  govern  our  relations  to  others,  as  follows: 
"Observe  good  faith  and  justice  towards  all  nations; 
cultivate  peace  and  harmony  with  all.  Eeligion  and 
morality  enjoin  this  conduct,  and  can  it  be  that  good 
policy  does  not  equally  enjoin  it  ?  " 

He  had  especially  in  mind  our  relations  with  the  na 
tions  across  the  Atlantic.  Probably  no  part  of  that  re 
markable  paper,  which  has  impressed  itself  upon  our 
people  more  than  any  other  since  the  Constitution,  sank 
deeper  into  the  hearts  of  his  fellow-citizens  than  this 
caution  against  involving  ourselves  in  the  political  en 
tanglements  of  Europe.  The  u  Monroe  Doctrine  "  is,  in  a 
certain  sense,  the  supplement  of  the  cautions  of  Washing 
ton.  "  We  will  not  interfere  in  the  affairs  of  Europe,  and 
Europe  is  not  to  interfere  in  ours."  There  was  in  this  a 
rough  equity:  "You  let  us  alone,  and  we  will  let  you 
alone,"  which  appealed  strongly  to  the  American  heart; 
and,  if  there  were  anything  which  can  be  said  to  have 
been  added  to  the  Constitution,  without  going  through 
the  forms  of  an  amendment,  it  was  this. 

The  foreign  policy  thus  developed  was,  indeed,  outside 
of  the  purview  of  the  letter  of  the  Constitution,  but  it 
may  well  be  accepted  as  within  the  spirit  of  its  preamble, 
which  declared  that  the  purpose  was  to  insure  domestic 
tranquillity  and  to  provide  for  the  common  defense.  As 


HI  Maine— Address  of  William  L.  Putnam. 

we  have  already  said,  there  is  no  doubt  that  the  f ramers 
of  the  Constitution  looked  only  to  protecting  and  pre 
serving  what  we  had,  and  that  they  had  no  thought  of 
aggrandizement.  The  slogan  at  the  early  part  of  the 
nineteenth  century  was:  "  Not  one  cent  for  tribute,"  and 
especially:  "Millions  for  defense."  It  may  justly  be 
claimed  that  the  acquisition  of  islands,  alien  to  our 
habits,  threatens  to  reverse  the  traditions  of  our  govern 
ment,  as  they  have  existed  for  more  than  a  century ;  but, 
should  these  acquisitions,  in  practical  experience,  develop 
anything  which  permanently  contradicts  the  fundamen 
tal  rules  which  have  guided  the  nation,  the  schooling  of 
the.  past,  especially  the  Constitutional  victories  won  by 
Marshall,  justify  the  expectation  that  we  will  seasonably 
throw  it  off. 

Thus  it  was  that  our  fathers  planted  deeply  the  tree 
of  Liberty,  so  that  it  stands,  and  ought  to  stand,  firm  and 
unshaken  by  the  force  of  time.  We  invoke  Bancroft: 
"  Never  may  its  trunk  be  riven  by  the  lightning,  nor  its 
branches  crash  each  other  in  the  maddening  storm,  nor 
its  beauty  wither,  nor  its  root  decay!"  Nevertheless, 
nothing  was  ever  truer  than  that  the  price  of  liberty  is 
eternal  vigilance.  A  half  century  ago,  Webster,  Clay, 
Benton,  Crittenden,  Johnson,  were  denounced  as  "  Union 
shriekers;"  but  Carl  Schurz,  in  his  eulogy  on  Sumner, 
points  out  with  wonderful  force  how  it  was  that  the 
constancy  of  statesmen  of  that  class,  in  stimulating  a 
deep  love  for  the  Union,  girded  up  the  loins  of  our  peo 
ple,  so  that  they  met  successfully  the  shock  of  the  Ke- 
bellion.  While  we  are  boasting  of  the  achievements  of 
the  nineteenth  century,  let  us  not  forget  that,  beginning 
with  the  years  of  the  Declaration  of  Independence,  and 
closing  with  the  years  of  the  adoption  of  the  Constitution, 


John  Marshall  Memorial.  112 

the  eighteenth  century  gave  mankind  a  boon  far  beyond 
anything  which  the  era  just  closed  has  given  it!  Let  us 
cherish  this  as  the  work  of  the  most  value  to  mankind, 
and  of  the  most  far  reaching  influence,  since  the  great 
Reformation !  Let  us  not  forget  that  Gladstone  declared 
the  Constitution  of  the  United  States  the  greatest  prod 
uct  of  human  genius  struck  out  at  a  single  blow !  And 
let  us  strive  unceasingly  to  infuse  our  generation  with 
the  study  of  it,  and  the  love  of  it,  remembering  that, 
while  Webster  was  the  greatest  of  the  later  keepers  of 
the  light  which  shone  out  over  the  civilized  world  from 
the  unpretentious  hall  at  Philadelphia,  Marshall  was  the 
first  to  shield  it,  so  that  ever  since  its  radiance  has  been 
steady,  strong  and  clear. 

CELEBRATION  AT  BOWDOIN  COLLEGE. 

An  address  was  delivered  at  Eowdoin  College  by  the 
Hon.  Charles  Freeman  Libby,  A.  M.  That  address  is 
given  below,  from  which  there  has  been  reluctantly  omit 
ted,  for  want  of  space,  certain  biographical  and  other  mat 
ter  contained  in  the  preceding  addresses  or  not  having 
any  immediate  reference  to  the  judicial  career  and  serv 
ices  of  Marshall. 

Address  of  Charles  Freeman  Libby.1 

To-day  marks  the  first  centennial  of  the  installation  of 
John  Marshall  as  Chief  Justice  of  the  United  States. 
Among  the  distinguished  men  who  have  held  that  high 

1  This  address  has  been  published  by  Bowdoin  College  with  the 
following  title:  John  Marshall:  An  address  delivered  at  the  College 
on  February  4,  1901,  the  Centenary  of  the  Installation  of  John  Mar 
shall  as  Chief  Justice  of  the  United  States,  by  Hon.  Charles  Free 
man  Libby,  A.  M. 


113  Maine  — Address  of  Charles  Freeman  Libby. 

office,  he  has  been  deemed  by  the  American  Bar  Associ 
ation  as  worthy  of  special  honor.  At  the  annual  meeting 
of  the  Association  held  in  Buffalo  in  1898  a  committee 
was  appointed,  consisting  of  one  member  from  each  State 
and  Territory  and  from  the  District  of  Columbia,  to  bring 
the  matter  of  a  proper  observance  of  "John  Marshall 
Day  "  to  the  attention  of  the  bench  and  bar  of  the  United 
States.  The  committee  has  recommended  that  not  only 
the  Bar  Associations  of  the  several  States  should  appro 
priately  observe  the  day,  but  that  commemorative  exer 
cises  should  be  held  in  all  schools  of  law  and  institutions 
of  learning  throughout  the  country,  "to  the  end  that  the 
youth  of  our  country  may  be  made  more  fully  acquainted 
with  Marshall's  noble  life  and  distinguished  services;" 
for  the  lessons  that  are  to  be  learned  from  a  study  of  the 
life  and  services  of  the  "  Great  Chief  Justice  "  are  valu 
able  not  only  to  the  legal  profession,  but  to  all  who  are 
students  of  our  constitutional  history,  and  who  can  draw 
inspiration  from  a  life  of  rare  usefulness  and  virtue. 

In  the  time  allowed  to  me  I  cannot  hope  to  give  any 
thing  like  a  full  sketch  of  the  varied  services  which  John 
Marshall  rendered  to  the  republic,  but  only  to  present  an 
imperfect  sketch  of  his  character  and  of  the  salient  feat 
ures  of  his  career,  which  filled  more  than  the  allotted 
span  of  life  and  was  crowded  with  splendid  achievement. 
If  what  I  may  say  shall  lead  the  young  men  of  this  gen 
eration  to  a  higher  appreciation  of  the  simplicity,  beauty, 
and  nobility  of  the  character  of  John  Marshall,  I  shall 
have  accomplished  the  object  I  have  in  view  in  accepting 
the  invitation  to  address  you.  A  cursory  study  of  his  life 
brings  out  prominently  the  fact  that  we  are  dealing  with 
a  man  of  large  natural  endowment,  whose  strength  was 
derived  from  a  vigorous  ancestry,  unaided  by  the  discipline 
VOL.  I— 8 


John  Marshall  Memorial.  114 

of  the  schools.  He  is  a  striking  example  of  how  great  a 
factor  heredity  is  in  the  life  of  the  individual  and  how 
subtle  and  far-reaching  is  its  influence.  We  are  the 
product,  as  has  been  well  said,  not  only  of  the  yesterdays 
of  our  own  lives,  but  of  the  many  yesterdays  of  our  an 
cestors. 

Happy  is  the  individual  who  not  only  is  born  with  a 
sound  mind  in  a  sound  body,  but  who  lives  in  an  environ 
ment  which  stimulates  him  to  his  highest  efforts.  While 
Marshall  was  fortunate  in  his  ancestors,  he  was  equally 
fortunate  in  his  environment.  He  lived  in  times  which 
quickened  into  early  growth  the  strong  qualities  of  his 
nature  and  furnished  ample  opportunity  for  their  highest 
exercise.  A  lesser  man  than  he  might  not  have  seen  or 
seized  these  opportunities,  but  therein  lay  the  quality  of 
the  man.  At  his  birth  the  mutterings  of  the  storm  which 
burst  nineteen  years  later  were  already  heard.  The  fatu 
ous  policy  of  the  mother  country  of  denying  to  her  colo 
nists  the  rights  of  Englishmen,  and  of  encroaching  upon 
their  liberties  by  oppressive  legislation,  had  already  begun 
to  arouse  a  spirit  of  rebellion,  which  needed  only  the 
flash  of  the  first  gun  at  Lexington  to  burst  into  open 
revolt.  These  colonists  had  been  educated  in  a  stern 
school,  in  which  religious  and  political  freedom  were  not 
empty  phrases,  but  energizing  truths.  The  progress  from 
loyalty  to  rebellion  was  slow,  but  sure,  and  accompanied 
by  a  progressive  education  in  the  science  of  government, 
which  found  its  ultimate  expression  in  the  Declaration  of 
Independence  and  the  Constitution  of  the  United  States. 
This  education  involved  much  discussion  of  political  prin 
ciples  in  public  and  in  private;  but  the  magnitude  of  the 
issues  lifted  the  subject  out  of  the  commonplaces  of  con 
troversy,  and  invested  it  with  an  importance  peculiarly 


115  Maine— Address  of  Charles  Freeman  Libby. 

its  own,  for  the  issues  were  real  and  vital.  In  those  days, 
political  philosophy  found  its  object-lesson  in  the  blind 
ness  and  obstinacy  of  the  mother  country.  "No  taxation 
without  representation  "  became  a  political  slogan,  and 
patriotism  took  concrete  form  in  resistance  to  tyranny. 
No  one  could  live  in  such  an  atmosphere  without  imbib- 
ing  an  ardent  love  of  liberty  and  a  high  conception  of 
civic  responsibilities. 

In  such  times  as  these  John  Marshall  was  born,  Sep- 
tember  24,  1755,  in  the  little  village  of  Germantown,  in 
the  frontier  county  of  Fauquier,  in  Yirginia.  He  came 
of  good  English,  Scotch  and  Welsh  stock.  His  father  was 
Colonel  Thomas  Marshall,  a  land  surveyor,  who  accompa 
nied  his  schoolmate,  George  Washington,  in  his  surveying 
expeditions  for  Lord  Fairfax.  He  was  a  man  of  marked 
ability  and  vigorous  intellect,  and  overcame  the  defects 
of  early  education  by  a  diligent  cultivation  of  his  natural 
powers.  At  a  time  when  books  were  scarce  in  Yirginia 
he  had  collected  a  small  library  of  the  best  English 
authors,  and  devoted  much  of  his  time  to  the  training 
and  education  of  his  children.  How  well  he  succeeded 
is  shown  in  the  career  of  his  eldest  son,  whose  obliga 
tions  to  his  father  were  never  forgotten.  On  this  point, 
Judge  Story,  in  his  eulogy  of  Marshall,  says:  "My 
father  (would  he  say  with  kindled  feelings  and  empha 
sis), —  my  father  was  a  far  abler  man  than  any  of  his 
sons.  To  him  I  owe  the  solid  foundation  of  all  my  own 
success  in  life." 

While  John  Marshall  makes  no  special  mention  of  his 
mother,  I  am  inclined  to  think  that  he  owes  as  much  to 
her  as  to  his  father.  There  is  a  strain  of  feminine  deli 
cacy  and  tenderness  in  his  composition  which  points  to  a 
maternal  source,  and  his  chivalrous  regard  for  women 


John  Marshall  Memorial.  116 

throughout  his  life  must  have  found  its  prompting  in 
some  prototype  in  his  own  home.  What  little  we  know 
of  his  mother  supports  the  theory  that  strong  men  trace 
their  virtues  to  the  female  side.  Her  maiden  name  was 
Mary  Isham  Keith.  She  came  of  good  family;  for  we 
are  told  that  her  father,  James  Keith,  an  Episcopal  min 
ister,  was  "  cousin-german  to  the  late  Earl  Marischal  and 
to  Field  Marshal  James  Keith,  one  of  the  most  valued 
of  the  great  Frederick's  lieutenants,  who  saved  the  Prus 
sian  army  and  fell  at  Hochkirch,  'as  poor  as  a  Scot,' 
though  he  had  the  ransoming  of  three  cities."  She  was 
the  mother  of  fifteen  children,  seven  sons  and  eight 
daughters,  all  of  whom  she  reared  to  mature  years.  The 
historian  wisely  adds, "  She  could  have  little  opportunity 
to  make  any  other  record  for  herself,  and  could  hardly 
have  made  a  better  one."  Of  the  fifteen,  John  Marshall 
was  the  first-born,  a  child  of  rare  gentleness  and  intel 
ligence. 

His  early  education  was  obtained  at  home, —  at  first 
under  his  father's  tuition  and  then  with  a  tutor,  a  Scotch 
clergyman  who  lived  in  the  family.  At  fourteen  he  at 
tended  school  one  term  at  a  classical  academy  in  West 
moreland  county,  where  his  father  and  General  Wash 
ington  had  been  pupils.  Keturning  home,  he  read  Hor 
ace  and  Livy  with  his  old  preceptor;  and  this  completed 
his  early  scholastic  training.  But  he  had  acquired  a 
love  for  good  literature,  and  especially  poetry, —  which 
has  been  a  food  for  many  noble  minds;  and  at  the  early 
age  of  twelve,  it  is  said,  he  knew  by  heart  a  large  por 
tion  of  Pope's  writings,  and  had  made  himself  familiar 
with  Dryden,  Shakespeare,  and  Milton.  He  was  fond  of 
athletic  sports  and  life  in  the  open  air;  and  to  these  tastes 
he  owed  the  sturdy  constitution  which  served  him  so 


117  Maine  — Address  of  Charles  Freeman  Libby. 

well  during  the  exposures  of  military  campaigns  and  the 
arduous  duties  of  his  later  life. 

At  eighteen  he  commenced  the  study  of  law.  But  the 
times  were  not  favorable  for  scholastic  pursuits,  and  he 
became  so  absorbed  in  the  questions  that  were  agitating 
the  public  mind  that  his  studies  were  interrupted.  Be 
fore  he  was  twenty  years  old,  he  had  enrolled  himself 
as  a  volunteer  in  a  militia  company,  and  with  the  earnest 
ness  which  was  characteristic  of  his  nature  devoted  him 
self  to  mastering  the  details  of  military  drill  and  tactics, 
preparatory  for  service  in  the  field.  .  .  . 

When  Marshall  was  appointed  Chief  Justice  of  the 
United  States  he  was  forty-five  years  of  age,  and  had 
never  yet  filled  any  judicial  office.  While  his  great  abili 
ties  were  recognized  by  the  legal  profession  and  the  pub 
lic,  he  had  yet  to  demonstrate  that  he  possessed  the 
qualities  of  a  great  judge.  Although  the  Supreme  Court 
had  been  in  existence  twelve  years  at  this  time,  and  three 
chief  judges  with  brief  terms  of  office  had  preceded  him, 
only  two  decisions  of  that  court  had  been  made  on  ques 
tions  of  constitutional  law.  It  is  difficult  for  us  in  this 
generation  to  appreciate  the  difficulties  that  surrounded 
the  judicial  department  of  the  government  in  the  dis 
charge  of  its  duty  to  expound  and  construe  the  Federal 
Constitution.  It  had  been  adopted  under  great  oppo 
sition,  had  aroused  great  difference  of  opinion  among  / 
wise  and  patriotic  men  as  to  its  true  meaning  on  many  ' 
material  points,  and  had  become  a  subject  of  heated 
political  controversy,  in  which  State  pride  and  jealousy 
and  fear  of  a  strong  central  government  entered  as  ele 
ments. 

Marshall,  in  his  Life  of  Washington,  has  stated  in  clear 
language  the  issues  which  then  threatened  to  disrupt  the 


John  Marshall  Memorial.  118 

country.  "  It  was,"  he  said,  "divided  into  two  great  po 
litical  parties,  the  one  of  which  contemplated  America 
as  a  nation,  and  labored  incessantly  to  invest  the  Federal 
head  with  powers  competent  to  the  preservation  of  the 
Union.  The  other  attached  itself  to  the  State  govern 
ment,  viewed  all  the  powers  of  Congress  with  jealousy, 
and  assented  reluctantly  to  measures  which  would  enable 
the  head  to  act  in  any  respect  independently  of  the  mem 
bers." 

At  the  date  of  his  appointment  no  case  had  yet  called 
for  a  decision  of  questions  which  opened  up  the  whole 
scheme  of  the  Constitution  and  determined  the  rules  for 
its  interpretation,  nor  had  the  meaning  and  scope  of  the 
important  provisions  which  restrained  the  powers  of  Con 
gress  and  of  the  States  presented  themselves  for  adjudi 
cation.  The  field  was  absolutely  new.  The  world  had 
never  known  before  such  a  science  as  the  law  of  a  writ 
ten  constitution  of  government.  There  were  no  prece 
dents,  and  the  road  had  to  be  cut  without  the  aid  of 
landmarks  or  guides.  To  construct  a  system  of  jurispru 
dence  under  these  conditions  required  a  man  of  the  high 
est  judicial  order;  for  it  was  not  sufficient  to  give  de 
cisions  which  were  technically  correct,  but  it  was  also 
necessary  to  support  them  by  reasons  which  should  com 
mend  themselves  to  the  great  body  of  the  people,  and  to 
combine  all  these  decisions  on  different  questions  in  a 
manner  so  harmonious  and  consistent  as  to  create  a  sys 
tem  of  constitutional  law  which  by  universal  consent 
should  become  the  fundamental  law  of  the  land.  To  ac 
complish  this  task  required  a  mind  which  combined  the 
highest  judicial  faculty  with  great  intellectual  strength 
and  scope.  These  qualities  Marshall  possessed,  and  they 
enabled  him  to  ultimately  raise  a  structure  of  constitu- 


119  Maine— Address  of  Charles  Freeman  Libby. 

tional  law  which  entitles  him  to  rank  among  the  very 
greatest  judges  which  the  world  has  known. 

One  of  the  first  cases  calling  for  a  construction  of  the 
Constitution  with  which  Marshall  had  to  deal  was  the 
suit  of  Marbury  v.  Madison.  This  case  presented  the 
question  of  the  power  of  the  court  to  set  aside  an  act  of 
Congress  because  it  was  in  violation  of  the  United  States 
Constitution.  The  decision  of  this  case  not  only  set  at 
rest  this  important  question,  but  emphasized  the  conflict 
ing  and  antagonistic  views  of  the  Constitution  which 
were  entertained  by  the  Federalists  and  the  Republicans 
of  that  day.  Jefferson,  who  was  then  President  and  the 
recognized  leader  of  the  Republicans,  did  not  hesitate  to 
declare  the  decision  a  perversion  of  the  law,  and  indulged 
in  undignified  and  captious  criticism  of  the  Chief  Jus 
tice.  Looking  back  upon  these  questions  after  an  inter- 
val  of  nearly  a  century,  we  cannot  but  rejoice  that  a 
Marshall,  and  not  a  Jefferson,  was  then  Chief  Justice; 
for,  if  the  views  of  the  latter  had  prevailed,  the  whole 
course  of  our  constitutional  history  would  have  been 
altered,  and  the  current  of  our  national  life  been  restricted 
within  much  narrower  bounds.  The  case  was  presented 
upon  a  petition  for  mandamus,  requiring  Madison,  who 
was  then  Secretary  of  State,  to  deliver  a  commission  to 
Marbury,  who  had  been  appointed  and  confirmed  by  the 
Senate  as  a  justice  of  the  peace  for  the  District  of  Colum 
bia  before  President  Adams  retired  from  office,  but  whose 
commission  had  not  been  delivered,  although  signed  by 
the  President  and  sealed  with  the  seal  of  the  United 
States,  when  Jefferson  came  into  office.  The  court  de 
cided  that  Marbury  was  entitled  to  the  commission,  and 
that  the  withholding  of  it  was  a  violation  of  a  vested 
right,  but  also  held  that  the  Supreme  Court  had  no  ju- 


John  Marshall  Memorial.  120 

risdiction  over  the  case  because  the  act  of  Congress 
conferring  the  power  on  the  Supreme  Court  was  uncon 
stitutional. 

How  great  a  landmark  this  was  in  constitutional  law, 
we  of  this  generation,  who  have  become  accustomed  to 
the  exercise  of  the  regulative  power  of  the  Supreme 
Court  in  matters  of  legislation,  can  hardly  appreciate; 
but  at  the  time  it  was  made  it  seemed  little  less  than 
revolutionary  to  lawyers  who  had  been  trained  in  the 
common  law,  and  educated  in  the  English  theory  that 
the  legislative  department  of  the  government  was  om 
nipotent.  For  such  men  it  was  difficult  to  conceive  how 
any  law  which  the  legislature  might  pass,  and  the  exec 
utive  approve,  could  be  set  aside  by  a  mere  judgment  of 
a  court.  It  was  a  novelty  in  jurisprudence,  and  no  prece 
dent  could  be  found  to  sustain  it  in  ancient  or  modern 
history.  Although  the  Constitution  declared  that  the 
judicial  power  should  extend  to  "all  cases  arising  under 
the  Constitution  and  the  laws  of  the  United  States," 
when  the  question  was  first  presented  in  a  Federal  court, 
this  power  seemed  so  fraught  with  evil  and  so  far-reach 
ing  in  its  consequences  that  escape  was  sought  by  a  nar 
row  and  strained  construction  of  its  provisions.  .  .  . 

Following  this  the  court  was  called  upon  in  Fletcher 
v.  Peck  to  pass  upon  the  constitutionality  of  an  act  of  the 
Legislature  of  the  State  of  Georgia,  which  was  pronounced 
to  be  null  and  void  as  in  violation  of  the  United  States 
Constitution.  The  same  objections  which  attached  to 
the  exercise  of  the  power  of  the  court  in  the  former  case 
were  intensified  in  this  case  by  a  feeling  that  the  inde 
pendence  of  the  State  governments  was  threatened  by 
the  jurisdiction  claimed  by  the  court.  The  question  at 
issue  was  the  ownership  of  a  tract  of  land,  for  which  one 


121  Maine  — Address  of  Charles  Freeman  Libby. 

Legislature  had  granted  a  patent  which  a  subsequent 
Legislature  had  repealed.  Again  Marshall  pronounced 
the  judgment  of  the  court  which  established  the  doctrine 
that  under  the  Constitution  the  States  are  prohibited 
from  passing  laws  impairing  the  obligation  of  contracts, 
and  that  the  power  of  the  court  was  sufficient  to  protect 
even  an  individual  against  the  injustice  of  a  State. 

This  principle  was  again  invoked  in  the  celebrated 
Dartmouth  College  case,  the  opinion  in  which,  to  quote 
the  language  of  one  of  the  present  justices  of  the  Supreme 
Court,  "contributed  as  much  as  any  he  ever  delivered  to 
the  great  reputation  of  Chief  Justice  Marshall,"  and  set 
tled  the  doctrine  that  a  charter  of  a  private  as  distin 
guished  from  a  public  corporation  is  a  contract  within 
the  protection  of  the  Federal  Constitution,  so  that  it  has 
ever  since  been  recognized  as  a  "canon  of  American  ju 
risprudence,  whose  doctrines,"  in  the  language  of  Chief 
Justice  Waite,  "  have  become  so  imbedded  in  the  juris 
prudence  of  the  United  States  as  to  make  them,  to  all 
intents  and  purposes,  a  part  of  the  Constitution  itself." 
The  facts  were  these :  A  charter  had  been  granted  by  the 
crown  to  Dartmouth  College  in  1769,  placing  its  govern 
ment  in  the  hands  of  a  board  of  trustees,  and  providing 
for  their  succession ;  and  on  the  faith  of  this  charter  the 
college  had  been  privately  endowed.  In  1816  the  Legis 
lature  of  JSfew  Hampshire  attempted  to  amend  the  char 
ter  and  change  its  form  of  government;  but  the  trustees 
of  the  college  refused  to  accept  the  acts,  and  recourse 
was  had  to  the  State  courts,  where  judgment  was  given 
against  them,  and  appeal  was  taken  to  the  Supreme  Court 
of  the  United  States.  Mr.  Webster  and  Mr.  Hopkinson 
appeared  for  the  college;  and  Mr.  Wirt,  then  Attorney- 
General  of  the  United  States,  and  Mr.  Holmes  appeared 


John  Marshall  Memorial.  122 

on  the  other  side.  The  principal  arguments  were  made 
by  Mr.  Wirt  and  Mr.  Webster.  The  latter  had  argued 
the  case  in  the  court  below,  and  was  familiar  with  the 
whole  controversy.  He  was  a  graduate  of  the  college, 
and  his  devotion  to  his  Alma  Mater  led  him  to  exert  all 
his  powers  in  her  defense.  His  argument  was  considered 
one  of  the  most  masterly  efforts  of  his  professional  life. 
Towards  its  close  he  was  overcome  by  emotion,  and 
paused  to  recover  his  composure.  Looking  at  Chief  Jus 
tice  Marshall,  he  said  in  those  deep  tones  which  so  often 
thrilled  the  hearts  of  an  audience,  "I  know  not  how 
others  may  feel;  but,  for  myself,  when  I  see  my  Alma 
Mater  surrounded,  like  Cassar  in  the  Senate  House,  by 
those  who  are  reiterating  stab  upon  stab,  I  would  not  for 
this  right  hand  have  her  turn  to  me  and  say,  *  Et  tu  quoque, 
mifili.'* "  The  importance  of  this  decision  is  well  stated 
by  one  of  the  eulogists  of  Marshall,  who  says :  "  The  case 
of  Dartmouth  College  is  the  bulwark  of  our  incorporated 
institutions  for  public  education,  and  of  those  chartered 
endowments  for  diffusive  public  charity  which  are  not 
only  the  ornaments  but  among  the  strongest  defenses  of 
a  nation.  It  raises  them  above  the  reach  of  party  and 
occasional  prejudice,  and  gives  assurance  to  the  hope  that 
the  men  who  now  live  may  be  associated  with  the  men 
who  are  to  live  hereafter,  by  works  consecrated  to  exalt 
and  refine  the  people,  and  destined,  if  they  endure,  to 
unite  successive  generations  by  the  elevating  sentiment 
of  high  national  character."  It  is  not  without  interest 
to  add  that  our  own  Alma  Mater  invoked  successfully 
the  doctrine  of  this  great  case  for  the  protection  of  her 
chartered  rights  against  legislative  action  by  the  State  of 
Maine  nearly  seventy  years  ago,  when  the  State  attempted 
to  change  the  constitution  of  its  boards,  and  to  exercise 


123  Maine — Address  of  Charles  Freeman  Libby. 

a  direct  influence  in  the  management  of  its  affairs;  and 
it  is  not  less  interesting  to  know  that  the  friend  and  asso 
ciate  of  Marshall  for  more  than  twenty  years  on  the  Su 
preme  Bench  —  the  learned  author  of  the  "  Commentaries 
on  the  Constitution,"  Judge  Story  —  delivered  the  opin 
ion  in  this  case  which  restored  Bowdoin  College  to  its 
ancient  charter  and  privileges.1 

The  case  of  Cohens  v.  The  State  of  Virginia  presented 
the  important  question  whether  the  Supreme  Court  could 
exercise  jurisdiction  where  one  of  the  parties  was  a  State 
and  the  other  a  citizen  of  the  same  State,  and  whether  in 
the  exercise  of  its  jurisdiction  it  could  revise  the  judg 
ment  of  a  State  court  on  a  question  arising  under  the 
Constitution  and  laws  of  the  United  States.  The  court 
held  that  it  had  jurisdiction  over  both  questions,  and  in 
the  course  of  his  opinion  the  Chief  Justice  used  the  fol 
lowing  memorable  language:  "It  [the  Supreme  Court] 
is  authorized  to  decide  all  cases  of  every  description  aris 
ing  under  the  Constitution  or  laws  of  the  United  States. 
From  this  general  grant  of  jurisdiction  no  exception  is 
made  of  those  cases  in  which  a  State  may  be  a  party. 
When  we  consider  the  situation  of  the  government  of  the 
Union  and  of  a  State  in  relation  to  each  other,  the  nature 
of  our  Constitution,  the  subordination  of  the  State  gov 
ernments  to  that  Constitution,  the  great  purpose  for  which 
jurisdiction  over  all  cases  arising  under  the  Constitution 
and  laws  of  the  United  States  is  confided  to  the  judicial 
department,  are  we  at  liberty  to  insert  in  this  general 
grant  an  exception  of  those  cases  in  which  a  State  may 
be  a  party  ?  Will  the  spirit  of  the  Constitution  justify 
this  attempt  to  control  its  words?  We  think  it  will  not. 

1  This  case  will  be  found  reported  at  length  in  Sumner's  Reports, 
vol.  1,  pp.  276-318. 


John  Marshall  Memorial.  124 

We  think  a  case  arising  under  the  Constitution  or  laws 
of  the  United  States  is  cognizable  in  the  courts  of  the 
Union,  whoever  may  be  the  parties  to  that  case.  .  .  .  The 
laws  must  be  executed  by  individuals  acting  within  the  sev 
eral  States.  If  these  individuals  may  be  exposed  to  pen 
alties,  and  if  the  courts  of  the  Union  cannot  correct  the 
judgments  by  which  these  penalties  may  be  enforced,  the 
course  of  the  government  may  be  at  any  time  arrested 
by  the  will  of  one  of  its  members.  Each  member  will 
possess  a  veto  on  the  will  of  the  whole."  .  .  . 

In  1807  Chief  Justice  Marshall  presided  over  the  trial 
of  Aaron  Burr,  in  the  Circuit  Court  of  the  United  States 
in  the  city  of  Kichmond,  Virginia,  on  an  indictment  for 
the  crime  of  high  treason  in  levying  war  against  the 
United  States.  Burr  had  been  Yice-President  of  the 
United  States,  and  had  come  within  one  vote  of  being 
elected  President;  and  his  successful  competitor  was  then 
President.  He  had  killed  Hamilton  in  a  duel  in  July, 
1804,  and  was  bitterly  hated  by  the  Federalists  for  caus 
ing  the  death  of  their  great  leader.  These  and  other  acts 
had  brought  him  into  disrepute;  and  his  restless  ambition 
was  seeking  new  fields  for  its  exercise,  and  he  thought 
he  had  found  it  in  an  expedition  which  he  set  on  foot 
against  the  Spanish  possessions  lying  to  the  south  of  the 
United  States. 

In  1805  he  made  preparations  for  the  invasion  and  con 
quest  of  Mexico,  and  contracted  for  the  construction,  on 
the  Ohio  River,  of  a  number  of  transports  for  the  expedi 
tion,  a  part  of  which  assembled  at  Blennerhassett's  Island 
in  the  State  of  Virginia,  where  the  main  depot  of  supplies 
and  stores  was  established.  At  this  point  a  force  of  some 
thirt}7"  or  forty  armed  men  assembled  as  the  nucleus  of  his 
future  army;  but  further  operations  were  arrested  by  a 


125  Maine  —  Address  of  Charles  Freeman  Libby. 

proclamation  of  the  President,  denouncing  the  scheme 
and  ordering  the  arrest  of  all  participants.  Burr,  among 
others,  was  arrested  and  brought  to  Kichmond  for  trial, 
and  was  defended  by  distinguished  counsel,  including  the 
late  Attorney-General,  Kandolph,  and  Luther  Martin,  of 
Maryland.  The  trial  attracted  a  large  number  of  citi 
zens,  not  only  from  Virginia,  but  from  other  States,  and 
aroused  throughout  the  country  great  interest  and  excite 
ment.  "William  Wirt  was  employed  on  a  special  retainer 
of  President  Jefferson  to  aid  the  government  prosecutor 
at  the  trial ;  and  the  pressure  of  public  opinion  was  exerted 
to  obtain  a  conviction,  which  it  was  said  the  "  people  of 
America  demanded."  Although  Burr  was  tried  before 
a  man  who  was  a  special  friend  of  Hamilton,  the  scales 
of  justice  were  held  with  an  absolutely  even  hand.  The 
framers  of  the  Constitution,  remembering  the  judicial 
murders  which  had  been  committed  in  England  under 
the  law  of  constructive  treason,  had  wisely  provided  in 
the  Constitution  that  "  treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them,  or  in  ad 
hering  to  their  enemies  giving  them  aid  and  comfort," 
and  further  provided  "  that  no  person  shall  be  convicted 
of  treason  unless  on  the  testimony  of  two  witnesses  to 
the  same  overt  act  or  on  confession  in  open  court."  The 
questions  to  be  decided  were  whether  the  assembling  of 
a  few  armed  men  at  Blennerhassett's  Island  constituted 
a  "  levying  of  war  "  against  the  United  States,  and  as  to 
the  proof  of  the  overt  act  alleged.  On  these  questions 
the  Chief  Justice  charged  the  jury  as  follows:  uAn  as 
semblage  to  constitute  an  actual  levying  of  war  should 
be  an  assemblage  with  such  force  as  to  justify  the  opin 
ion  that  they  met  for  the  purpose.  Why  is  an  assemblage 
absolute^  required  ?  Is  it  not  to  judge,  in  some  measure, 


John  Marshall  Memorial.  126 

of  the  end  by  the  proportion  which  the  means  bear  to  the 
end  ?  Why  is  it  that  a  single  armed  individual  entering 
a  boat  and  sailing  down  the  Ohio  for  the  avowed  purpose 
of  attacking  New  Orleans  could  not  be  said  to  levy  war  ? 
Is  it  not  that  he  is  apparently  not  in  a  condition  to  levy 
war  ?  If  this  be  so,  ought  not  the  assemblage  to  furnish 
some  evidence  of  its  intention  and  capacity  to  levy  war 
before  it  can  amount  to  levying  war  ?  .  .  .  Now  an 
assemblage  on  Blennerhassett's  Island  is  proved  by  the 
requisite  number  of  witnesses,  and  the  court  might  sub 
mit  it  to  the  jiiry  whether  that  assemblage  amounted  to  a 
levying  of  war;  but,  the  presence  of  the  accused  at  that 
assemblage  b^ing  nowhere  alleged  except  in  the  indict 
ment,  the  overt  act  is  not  proved  by  a  single  witness,  and 
of  consequence  all  other  testimony  must  be  irrelevant." 

Following  the  law  laid  down  by  the  Chief  Justice,  the 
jury  brought  in  a  verdict  of  "  not  guilty ; "  and  the  angry 
counsel  for  the  government  declared  that  "  Marshall  had 
stepped  in  between  Burr  and  death." 

In  the  course  of  the  trial  the  court  was  asked  to  issue  a 
subpoena  duces  tecum,  directed  to  the  United  States  marshal, 
commanding  him  to  summon  Thomas  Jefferson,  President 
of  the  United  States,  to  appear  before  the  court,  and  bring 
with  him  certain  papers  therein  designated  which  Burr 
alleged  were  necessary  for  his  defense,  and  which  were 
in  the  possession  of  the  Executive  Department  at  Wash 
ington  ;  and  after  a  full  hearing  the  Chief  Justice  ordered 
the  subpoena  to  issue.  This  with  other  features  of  the  trial 
caused  great  dissatisfaction  on  the  part  of  the  President, 
who  had  the  bad  taste  and  temper  to  denounce  the  ruling 
of  the  court  as  "  an  offensive  trespass  on  the  Executive 
Department  of  the  Government,"  and  further  gave  vent 
to  his  dissatisfaction  with  the  conduct  of  the  trial  in  a 


127  Maine— Address  of  Charles  Freeman  Libby. 

message  to  Congress.  But  the  judgment  of  posterity  has 
sustained  the  course  of  Marshall,  and  it  is  generally  ad 
mitted  "that  never  in  all  the  dark  history  of  State  trials 
was  the  law,  as  then  it  stood  and  bound  both  parties, 
ever  interpreted  with  more  impartiality  to  the  accuser 
and  the  accused." 

How  fully  Marshall  appreciated  the  responsibilities  and 
difficulties  of  his  decision  is  shown  in  the  language  of  his 
charge,  where  he  said :  "  That  this  court  dares  not  usurp 
power  is  most  true.  That  this  court  dares  not  shrink  from 
its  duty  is  not  less  true.  No  man  is  desirous  of  placing 
himself  in  a  disagreeable  situation.  No  man  is  desirous 
of  becoming  the  peculiar  subject  of  calumny.  No  man, 
might  he  let  the  bitter  cup  pass  from  him  without  self- 
reproach,  would  drain  it  to  the  bottom.  But,  if  he  has  no 
choice  in  the  case ;  if  there  is  no  alternative  presented  to 
him  but  a  dereliction  of  duty  or  the  opprobrium  of  those 
who  are  denominated  the  world,  he  merits  the  contempt 
as  well  as  the  indignation  of  his  country,  who  can  hesi 
tate  which  to  embrace." 

The  rule  of  construction  as  governing  the  Constitu 
tion  which  the  Chief  Justice  laid  down  in  the  early  case 
of  Gibbons  v.  Ogden  is  characteristic  of  the  broad  and 
firm  grasp  he  had  of  the  underlying  principles  of  our 
government.  He  avoids  the  extreme  of  either  broad  or 
narrow  construction  of  the  instrument,  and  declares  that 
the  natural  meaning  of  the  words  must  govern  without 
being  wrenched  in  any  direction.  .  .  . 

The  bar  of  the  Supreme  Court  of  the  United  States, 
during  the  period  of  Marshall's  Chief  Justiceship,  pre 
sented  a  galaxy  of  brilliant  and  distinguished  names. 
Among  them  were  Dexter  and  Webster,  Hoffman,  Ogden, 
Emmet,  Eawle,  Ingersoll,  Sergeant,  Binney,  Pinkney, 


John  Marshall  Memorial.  128 

Randolph,  and  Wirt;  and  the  arguments  of  these  great 
leaders  of  the  bar  aided  not  a  little  the  labors  of  the  court. 
For  thirty-four  years  Marshall  continued  the  series  of  judg 
ments  which  constitute  the  basis  of  the  constitutional  law 
of  this  country,  which,  it  is  not  too  much  to  say,  owes 
more  to  Marshall  than  to  any  other  man. 

How  much  credit  is  due  to  Marshall  in  this  work  appears 
by  the  testimony  of  one  of  his  associates,  who  was  not 
likely  to  undervalue  or  disparage  the  labors  of  other 
members  of  the  court.  In  an  article  on  Marshall,  con 
tributed  during  the  latter's  lifetime  to  the  North  Ameri 
can  Review  in  1828,  Judge  Story  said:  "We  resume  the 
subject  of  the  constitutional  labors  of  Chief  Justice  Mar 
shall.  We  emphatically  say,  of  Chief  Justice  Marshall. 
For,  though  we  would  not  be  unjust  to  those  learned 
gentlemen  who  have  from  time  to  time  been  his  associ 
ates  on  the  bench,  we  are  quite  sure  they  would  be  ready 
to  admit,  what  the  public  universally  believe,  that  his 
master  mind  has  presided  in  their  deliberations,  and 
given  to  the  results  a  cogency  of  reasoning,  a  depth  of 
remark,  a  persuasiveness  of  argument,  a  clearness  and 
elaboration  of  illustration,  an  elevation  and  comprehen 
siveness  of  conclusion,  to  which  none  others  offer  a  par 
allel.  Few  decisions  upon  constitutional  questions  have^ 
been  made  in  which  he  has  not  delivered  the  opinion  oy 
the  court;  and  in  those  few  the  duty  devolved  upon  oth 
ers  to  their  own  regret,  either  because  he  did  not  sit  in 
the  case,  or  from  motives  of  delicacy  abstained  from  tak 
ing  an  active  part."  But,  in  addition  to  these  labors,  he 
also  dealt  with  other  subjects  where  there  were  few 
precedents  to  guide  him,  such  as  the  rights  of  the  Indian 
tribes  over  the  lands  which  they  had  formerly  occupied, 
and  as  nations  in  the  States  in  which  they  dwelt;  and 


129  Maine  — Address  of  Charles  Freeman  Libby. 

in  international  law  he  had  to  deal  with  such  questions 
as  the  complicated  rights  of  neutrals  and  belligerents, 
captors  and  claimants,  of  those  trading  under  flags  of 
peace  and  those  privateering  under  letters  of  marque  and 
reprisal,  together  with  questions  of  the  jurisdiction  and 
judgments  of  foreign  tribunals  in  matters  of  prize  law, 
where  there  were  few  precedents  for  their  solution. 

Near  the  close  of  his  life,  in  the  seventy-fifth  year  of 
his  age,  he  was  a  member  of  the  Virginia  State  Conven 
tion  which  was  called  in  1829  to  revise  the  State  Con 
stitution.  In  that  distinguished  assembly  there  were  two 
ex-Presidents  of  the  United  States,  Madison  and  Monroe, 
besides  other  men  of  brilliant  talents  and  national  repu 
tation.  Among  them  Marshall  was  not  the  least  dis 
tinguished.  The  discussions  lasted  several  weeks,  and 
developed  great  differences  of  opinion,  accompanied  with 
no  little  acrimony  in  debate.  The  Chief  Justice  used 
his  great  powers  in  urging  a  spirit  of  conciliation  and 
compromise  on  many  questions  which  had  proved  a  source 
of  dissension  and  debate;  but  on  the  question  of  judicial 
tenure  of  office  he  took  a  positive  stand,  and  spoke  with 
great  earnestness  and  power,  and  in  words  which  may 
well  be  repeated  in  these  days,  when  the  independence 
of  our  judges  is  threatened  by  popular  elections,  and  the 
encroachment  of  the  legislative  upon  other  departments 
of  the  government  is  becoming  more  and  more  marked. 

Of  the  personal  qualities  of  Marshall  much  might  be 
said.  His  father  has  said  of  him  that  "  he  never  seriously 
displeased  him  in  his  life,"  and  the  testimony  of  his  own 
family  bears  witness  to  the  almost  flawless  quality  of  the 
man.  Of  how  many  could  it  be  truly  said,  as  one  of  his 
relatives  has  said  of  him:  "He  had  no  affrays  in  boy- 
VOL.  1—9 


John  Marshall  Memorial.  130 

hood.  He  had  no  quarrels  or  outbreakings  in  manhood. 
He  was  the  composer  of  strifes.  He  spoke  ill  of  no  man. 
He  meddled  not  with  their  affairs.  He  viewed  their 
worst  deeds  through  the  medium  of  charity.  He  had 
eight  sisters  and  six  brothers,  with  all  of  whom,  from 
youth  to  age,  his  intercourse  was  marked  by  the  utmost 
kindness  and  affection,  and,  although  his  eminent  tal 
ents,  high  public  character,  and  acknowledged  usefulness 
could  not  fail  to  be  a  subject  of  pride  and  admiration  to 
all  of  them,  there  is  no  one  of  his  numerous  relations 
who  has  had  the  happiness  of  a  personal  association  with 
him  in  whom  his  purity,  simplicity,  and  affectionate  be 
nevolence  did  not  produce  a  deeper  and  more  cherished 
impression  than  all  the  achievements  of  his  powerful 
intellect.1" 

One  of  his  intimate  personal  friends  has  paid  him  this 
tribute:  "  In  private  life  he  was  upright  and  scrupulously 
just  in  all  his  transactions.  His  friendships  were  ardent, 
sincere,  and  constant,  his  charity  and  benevolence  un 
bounded.  He  was  fond  of  society,  and  in  the  social  circle 
cheerful  and  unassuming.  He  participated  freely  in  con 
versation,  but  from  modesty  followed  rather  than  led. 
Magnanimous  and  forgiving,  he  never  bore  malice,  of 
which  illustrious  instances  might  be  given.  A  republican 
from  feeling  and  judgment,  he  l^oved  equality,  abhorred 
all  distinctions  founded  upon  rank  instead  of  merit,  and 
had  no  preference  for  the  rich  over  the  poor." 

Unlike  many  judges,  he  knew  how  to  unbend;  and  the 
serious  side  of  his  nature  was  relieved  by  a  sense  of  humor 
which  made  him  the  most  agreeable  of  companions.  His 
laugh  was  frank  and  hearty,  at  times  he  was  even  hilari 
ous.  He  was  fond  of  young  people,  and  entered  into 
their  pleasures  with  zest  and  enthusiasm.  For  more  than. 


131  Maine  —  Address  of  Charles  Freeman  Libby. 

forty  years  he  was  a  member  of  the  Barbecue  or  Quoit 
Club  of  Richmond,  which  met  for  recreation  once  a  fort 
night  from  May  till  October  in  each  year,  and  even  in 
advanced  years  was  among  the  most  skilful  in  throwing 
the  quoits.  So  great  a  favorite  was  he  at  these  social 
gatherings  that  at  his  death  it  was  proposed  there  should 
be  no  attempt  to  fill  the  vacancy,  "  but  that  the  number 
of  the  club  should  be  one  less  than  it  was  before." 

There  is  also  another  side  to  his  character  which  should 
not  be  omitted ;  and  that  is  his  chivalrous  respect  for 
women,  which  he  exhibited  during  all  his  life,  and  which 
was  shown  in  his  devotion  to  his  wife,  whom  he  married 
when  he  was  twenty-eight  years  old,  and  with  whom  he 
lived  in  uninterrupted  harmony  for  nearly  fifty  years. 

When  an  old  man  he  used  to  say  "  that  it  seemed  to 
him  that  young  men  were  no  longer  lovers,  and  did  not 
know  what  love  was,  they  were  so  lackadaisical  about 
it."  Harriet  Martineau,  who  met  him  in  Washington 
the  year  before  his  death,  has  written  of  him:  "He  main 
tained  through  life  and  carried  to  his  grave  a  reverence 
for  women  as  rare  in  its  kind  as  in  its  degree." 

Such  was  the  career  of  John  Marshall.  Few  men  have 
had  larger  opportunities  for  the  display  of  their  talents. 
Few  could  have  performed  so  well  his  tasks.  As  soldier, 
lawyer,  statesman,  diplomatist,  and  judge,  he  met  every 
demand  that  was  made  upon  him,  and  in  such  a  way  as 
to  enhance  his  ultimate  fame.  Great  as  were  his  achieve 
ments,  the  man  himself  was  still  greater.  After  all  has 
been  said,  his  life  is  his  best  eulogy.  Like  a  rare  gem, 
which,  however  held,  flashes  some  new  phase  of  its  beauty 
in  the  sunlight,  John  Marshall,  from  whatever  side  we 
view  him,  reveals  some  new  virtue,  some  new  source  of 
strength.  In  his  case  we  have  not  to  discriminate  be- 


John  Marshall  Memorial.  132 

tween  private  life  and  public  achievement,  nor  to  throw 
the  mantle  of  charity  over  personal  defects  which  might 
mar  the  brilliancy  of  his  fame.  We  can  say  of  him  as 
was  said  of  Bayard  in  the  days  of  knighthood,  in  private 
and  in  public  life  he  was  sans  peur  et  sans  reproche. 

In  these  halls  of  learning  dedicated  to  the  education 
of  youth,  where  lofty  ideals  are  taught  and  the  impor 
tance  of  character  as  well  as  achievement  is  emphasized, 
we  do  well  to  honor  the  memory  of  John  Marshall,  who 
illustrates  in  his  life  the  happy  results  of  combined  moral 
and  intellectual  force,  and  the  enduring  quality  of  a  fame 
which  rests  on  high  character  as  well  as  noble  achieve 
ment. 


STATE  OF  NEW  HAMPSHIRE. 

"  Marshall  day  "  in  New  Hampshire  was  celebrated  by 
the  State  Bar  Association  at  a  meeting  held  at  Manches 
ter,  February  4,  1901.  The  proceedings  consisted  of  an 
address  by  George  B.  French,  of  Nashua,  the  President 
of  the  Association;  a  principal  address  by  Jeremiah 
Smith,  Professor  of  Law  at  Harvard  University;  an  ad 
dress  on  John  Marshall  as  a  Soldier  by  Edgar  Aldrich,  of 
Littleton ;  and  an  address  by  .Robert  M.  Wallace,  of  Mil- 
ford,  on  The  Associates  of  John  Marshall. 

At  the  annual  dinner  of  the  Association  an  introduc 
tory  address  was  made  by  Frank  S.  Streeter,  of  Concord, 
and  responses  to  appropriate  sentiments  were  given  by 
his  Excellency  Chester  B.  Jordan,  of  Lancaster;  by  Wil 
liam  J.  Tucker,  of  Hanover,  President  of  Dartmouth 
College;  by  Charles  H.  Burns,  of  Wilton;  by  Oliver  E. 
Branch,  of  Manchester;  by  Charles  B.  Corning,  of  Con 
cord,  and  by  John  S.  II.  Frink,  of  Portsmouth.  We  give 
the  principal  address  in  full  and  some  of  the  more  impor 
tant  and  characteristic  portions  of  the  others.1 

Introductory  Address,  by  George  B.  French,  of  Nashua. 

We  have  assembled  here  not  only  to  celebrate  the  an 
niversary  of  a  notable  event  in  the  life  of  one  of  our  pro- 

1  The  proceedings  on  John  Marshall  day  are  officially  published  in 
the  Report  of  the  Bar  Association  of  New  Hampshire  (N.  S.),  Vol.  I, 
No.  2,  pp.  275-399,  with  portraits  of  Chief  Justice  Marshall  and  George 
B.  French,  President  of  the  Association. 


John  Marshall  Memorial.  134 

fession  and  in  the  history  of  our  highest  court,  but  to 
gather  fresh  strength  and  inspiration  by  studying  the 
mind,  the  character  and  the  work  of  one  who  can  safely 
be  called  ideal.  Since  there  is  but  little  in  human  life 
that  can  be  truly  called  transcendent,  it  is  well  that  we 
should  frequently  recur  to  exalted  characters  and  their 
achievements,  not  only  as  a  grateful  tribute,  but  to  estab 
lish  and  re-establish  our  own  ambitions  and  pursuits  in 
the  paths  of  high  endeavor. 

This  clay's  work  throughout  the  land  will  surely  bring 
us  to  taste  that  omer  of  manna,  some  portion  of  which 
in  every  age  is  carefully  kept  and  carried  into  the  prom 
ised  land  of  man's  progress.  For  the  first  time  in  the 
country's  history,  the  bench  and  the  bar  of  the  land 
meet  throughout  its  breadth,  and  with  one  mind  pay 
highest  tribute  to  the  memory  of  a  judge.  We  are  not 
moved  by  the  influences  that  give  birth  to  fulsome  eulo 
gies,  such  as  personal  associations,  the  shock  of  recent 
loss,  the  desire  of  gratifying  a  sad  community,  or  con 
ventional  proprieties,  but  the  conclusions  of  dispassionate 
history  have  gathered  us  in  every  State,  to  declare  that 
the  supreme  worth  of  John  Marshall's  character  and 
work  as  a  judge  has  become  more  and  more  established 
by  the  flight  of  every  one  of  the  hundred  years  since  he 
took  his  place  as  Chief  Justice  of  our  highest  national 
court. 

By  the  efforts  of  members  of  the  bar,'  we  have  been 
brought  to  study  a  career  and  work  that  closed  two- 
thirds  of  a  century  ago,  and  the  closer  our  attention  has 
been  given  to  this  remarkable  man  and  his  work,  the 
more  heartily  have  we  indorsed  the  worth  and  useful 
ness  of  the  theme. 

We  may  also  rejoice  at  a  further  happy  situation,  that 


135  •    New  Hampshire — Address  of  George  B.  French. 

events  were  so  shaped  that  the  chief  magistracy  of  the 
nation  did  not  pass  to  Jefferson  in  1801  quite  soon  enough 
to  lose  to  the  State  this  masterly  mind  in  this  greatest 
field  of  law.  .  „  . 

The  distinguishing  features  of  Marshall's  power  as  a 
judge  are  seen  in  clear  light  when  he  is  compared  with 
Judge  Story,  who  sat  with  him  on  the  bench  from  1811 
till  Marshall's  death.  Story  was  a  lawyer  of  remarkable 
ability  and  profound  learning.  As  we  all  know,  he  at 
tained  great  distinction,  not  only  as  a  judge,  but  as  a  lec 
turer  on  law,  and  as  an  author.  In  the  Dartmouth  College 
case  both  these  judges  furnished  opinions,  and  the  methods 
of  argument  and  effectiveness  of  each  are  perhaps  as  well 
seen  in  that  case  as  in  any  of  the  cases  in  which  both  took 
part.  Marshall  begins  every  important  case  by  putting 
aside  all  confusing  issues  not  vital  to  the  decision.  He 
clears  the  atmosphere  by  stating  all  the  points  that  mate- 
rialfy  affect  the  question,  getting  right  at  the  marrow.  He 
carefully  answers  all  the  adverse  arguments,  and  usually 
leaves  practically  nothing  for  a  rehearing.  When  he 
closes  his  opinion,  counsel  are  convinced  that  the  case  is 
sealed.  He  does  not  attempt  to  convince  or  rivet  his  con 
clusions  by  an  exhaustive  array  of  authorities,  or  any  com 
plete  analysis  of  them.  While  he  shows  respect  for 
authorities,  he  spends  very  little  effort  in  reviewing  them. 
Story  says,  "  He  discussed  authorities  as  if  the  very  minds 
of  the  judges  themselves  stood  disembodied  before  him." 

His  chief  aim  in  argument  is  to  be  unanswerably  strong, 
wasting  no  force  in  a  display  of  learning,  nor  allowing 
anything  not  vital  to  -his  conclusions  to  distract  or  con 
fuse.  He  often  alludes  in  the  beginning  of  his  opinion  to 
the  serious,  if  not  solemn,  importance,  of  the  questions 
involved,  and  how  it  would  be  more  agreeable  to  be  rid 


John  Marshall  Memorial.  136 

of  deciding  them,  and  then  he  states  the  fearless  spirit 
with  which  the  bench  must  address  itself  to  the  matter. 
Thus  inspired  with  the  soul  of  a  just,  weighty,  and  fear 
less  purpose,  the  argument  moves  like  a  compact,  irre 
sistible  body  of  soldiers. 

It  is  hard  to  mention  Judge  Story  and  bestow  upon  him 
too  much  honor.  He  was  most  learned  in  all  that  had 
been  written  in  the  field  of  law,  and  he  had  one  of  the 
best  minds  that  ever  adorned  our  bench.  Yet  he  was 
never  the  equal  of  Marshall  in  that  incisiveness  and  orig 
inality  which  could  go  to  the  bottom  of  new  questions, 
little  aided  by  the  investigations  of  the  past,  and  uner 
ringly  reach  the  true  conclusions. 

In  the  Dartmouth  College  case  Marshall  did  not  cite  a 
single  authority,  but  with  them  Story  began  and  ended 
his  opinion.  He  was  loaded  with  them,  so  much  so  that 
he  was  measurably  hampered  in  his  methods  of  develop 
ing  the  discussion.  Marshall  lost  sight  of  a  few  points 
that  Story  discussed,  yet  you  are  carried  along  by  Mar 
shall's  methods,  and  your  doubts  go  down  before  him. 
You  are  no  better  satisfied  by  the  more  lengthy  opinion 
of  Story,  nor  does  his  array  of  authorities  have  any  su 
perior  persuasive  force  after  studying  Marshall's  opinion. 
Webster  said  of  Marshall's  method  in  the  Dartmouth  Col 
lege  case:  "  He  reasoned  along  from  step  to  step,  and,  not 
referring  to  the  cases,  adopted  the  principles  of  them,  and 
worked  the  whole  into  a  close,  connected,  and  very  able 
argument."  His  day  upon  the  bench  was  not,  as  some 
one  has  said,  the  day  of  his  "  dictatorship."  If  his  opinions 
were  dominant,  it  was  not  the  dominance  of  an  over 
mastering,  tyrannical  will,  crushing  all  before  it,  but  the 
prevalence  rather  of  the  highest  reason,  pressed  home 
under  the  influence  of  the  loftiest  motives  and  character. 


137         New  Hampshire— Oration  by  Jeremiah  Smith?. 

There  has  been  but  one  Marshall,  as  there  has  been  but 
one  Washington.  .  .  . 

But  I  promised  myself  that  I  would  be  brief,  and  I  am 
anxious  to  be  true  to  my  purpose,  for,  in  common  with 
you,  I  await  with  expectant  pleasure  the  exact  and  reli 
able  judgment,  the  delightful  thoughts,  the  wide  survey, 
and  selected  treasures  from  Marshall's  work  that  our 
orator,  Judge  Smith,  has  now  brought  to  us.  True  to 
his  uniform  kindness,  he  has  sacrificed  much  in  yielding 
to  our  invitation.  He  is  assured  of  one  thing,  that  this 
bar  deeply  appreciates  his  effort,  just  as  it  has  ever  ap 
preciated  the  honor  that  his  association  with  it  has  con 
ferred.  My  attempted  brevity  has  also  had  in  view  the 
addresses  of  Judges  Aldrichand  Wallace,  looked  forward 
to  with  great  pleasure. 

If  I  have  occupied  too  much  time,  let  extenuation  be 
found,  not  in  these  very  general  views,  but  in  the  charm 
ing  character  and  life  of  the  great  Chief  Justice,  a  life 
so  replete  with  high  ideals  and  devotion  to  the  immor 
tality  of  our  Constitution,  and  the  solidity  of  the  Na 
tion,  that  not  to  be  absorbed  with  interest  in  him  were 
evidence  enough  of  one's  failure  rightly  to  use  the  privi 
leges  of  this  occasion,  or  of  one's  poverty  in  all  those 
sentiments  and  principles  that  make  for  the  best  and 
highest. 

Oration  by  Jeremiah  Smith,  of  Cambridge,  Mass. 

Why  does  the  legal  profession  throughout  the  land 
celebrate  this  day  ?  Why  single  out  one  judge  for  such 
marked  reverence  ?  Why  is  the  centennial  of  John  Mar 
shall's  accession  to  the  beach  to  be  thus  honored  above 
all  other  days  in  judicial  history  ?  Is  it  because  he  played 


John  Marshall  Memorial.  138 

a  double  part  in  our  national  life;  because  he  was  a  states 
man  as  well  as  a  jurist;  a  Cabinet  officer  before  he  was 
Chief  Justice  ?  No.  That  reason  would  also  apply  to  both 
his  immediate  successors,  Taney  and  Chase.  Is  it  because, 
in  dealing  with  the  ordinary  questions  of  jurisprudence, 
he  so  far  excelled  all  other  judges  that  he  belongs  to  a 
distinct  order  ?  No.  So  far  as  such  labor  is  concerned, 
although  Marshall  stands  at  the  head,  there  are  other 
American  jurists  who  must  be  put  in  the  same  class.  Not 
to  multiply  instances,  it  is  sufficient  to  name  Parsons  of 
Massachusetts,  Kent  of  New  York,  Gibson  of  Pennsyl 
vania,  and  Gaston  of  North  Carolina. 

The  cause  of  Marshall's  extraordinary  pre-eminence  is 
to  be  found  in  the  fact  that  he  was  a  pioneer,  and  a  suc 
cessful  pioneer,  in  a  new  field,  that  of  constitutional  law. 

When  Marshall  came  upon  the  bench  a  great  political 
revolution  was  just  taking  place.  John  Adams  had  been 
defeated  for  re-election  by  Thomas  Jefferson,  who  was  to 
be  inaugurated  a  month  later.  The  Federalists  had  lost 
not  only  the  Presidency,  but  also  both  Houses  of  Congress. 
Few  members  of  the  victorious  Democracy  then  supposed 
that  there  could  be  any  check  upon  the  power' of  their 
party  and  its  leaders.  They  saw  that  they  had  a  major 
ity  of  the  popular  vote;  and  that  they  had  with  them 
the  public  functionaries  who  made  appointments,  as  well 
as  a  majority  of  the  legislative  bodies  which  levied  taxes 
and  enacted  statutes.  It  had  not  occurred  to  many  of 
them  (except  the  President-elect)  that  there  was  in  the 
United  States  a  department  of  the  Government  which, 
within  its  sphere,  was,  for  the  time  being,  superior  to 
both  President  and  Congress.  Such,  however,  was  in 
in  fact  the  position  of  the  Supreme  Court.  And,  by  rea 
son  of  the  appointment  of  Marshall  in  the  last  months 


139         New  Hampshire — Oration  by  Jeremiah  Smitrt. 

of  the  Adams  administration,  the  Federalistic  theories  of 
the  Constitution  prevailed  in  that  tribunal  for  more  than 
a  generation,  and  indeed  long  after  the  Federalist  party 
had  ceased  to  exist  as  a  political  organization. 

The  experiment  of  a  written  constitution,  with  its 
checks  and  balances  and  guaranties,  was  not  attempted 
in  America  alone.  France  tried  the  plan  at  the  same 
time,  and  came  to  a  disastrous  result.  The  great  'dis 
tinguishing  feature  of  the  United  States  Constitution  is, 
that  it  creates  an  instrument  by  means  of  which  its  rules 
and  principles  can  be  effectively  enforced.  It  provides 
for  the  establishment  of  a  judicial  tribunal  which  shall 
be  the  final  arbiter  upon  all  questions  relating  to  the  al 
leged  infractions  of  the  Constitution.  "  The  Supreme 
Court  of  the  United  States,"  says  Sir  Henry  Maine,  "  is 
a  virtually  unique  creation  of  the  founders  of  the  Con 
stitution."  And  the  novelty  consists,  not  only  in  the 
creation  of  such  a  tribunal,  but  also  in  the  manner  in 
which  its  great  powers  can  be  called  into  exercise.  Many 
people  would  say  that  the  court  ought  to  be  compellable 
to  pronounce  upon  the  constitutionality  of  any  legislative 
act,  whenever  its  opinion  was  requested  by  any  consid 
erable  number  of  citizens;  or,  at  all  events,  whenever 
requested  by  the  executive  or  legislative  departments. 
Fortunately,  however,  the  framers  of  our  National  Con 
stitution  saw  the  inherent  dangers  of  such  a  method  and 
rejected  it.  The  remarkable  power  of  the  court  "  is  capa 
ble  only  of  indirect  exercise;  it  is  called  into  activity  by 
'cases,'  by  actual  controversies,  to  which  individuals,  or 
States,  are  parties.  The  point  of  unconstitutionality  is 
raised  by  the  arguments  in  such  controversies;  and  the 
decision  of  the  court  follows  the  view  which  it  takes  of 


John  Marshall  Memorial.  140 

the  Constitution."1  "What  the  court  does  is  simply  to 
determine  that  in  a  given  case  A  is  or  is  not  entitled  to 
recover  judgment  against  X;  but  in  determining  that 
case  the  court  may  decide  that  an  act  of  Congress  "  (or  a 
statute  of  a  State)  "is  not  to  be  taken  into  account,  since 
it  is  an  act  beyond  the  constitutional  powers  of  Congress  " 
(or  of  the  State  Legislature).2 

But  although  the  power  of  the  court  is  thus  exercised 
only  in  this  indirect  manner,  it  is  none  the  less  an  author 
ity  of  illimitable  force.  Professor  Dicey  does  not  over 
state  when  he  says:  "The  law  courts  become  the  pivot 
on  which  the  constitutional  arrangements  of  the  country 
turn."  The  bench  "can  and  must  determine  the  limits 
to  the  authority  both  of  the  Government  and  of  the  Legis 
lature;  their  decision  is  without  appeal;  the  consequence 
follows  that  the  bench  of  judges  is  not  only  the  guardian 
but  also  the  master  of  the  Constitution." 3 

To  the  headship  of  the  court  possessing  this  extraordi 
nary  power,  John  Marshall,  of  Yirginia,  was  appointed 
by  President  Adams  in  the  twelfth  year  of  the  United 
States  Government.  His  age  was  then  forty-five,  and  he 
had  had  the  great  benefit  of  an  "  all  round  "  experience. 
He  had  known  the  vicissitudes  of  peace  and  war.  As  an 
officer  of  the  Army  of  the  Revolution,  he  had  proved  his 
courage  on  such  battle-fields  as  Brandywine  and  Mon- 
mouth,  and  had  exhibited  the  still  higher  quality  of  pa 
tient  endurance  during  the  horrors  of  the  winter  at  Valley 
Forge.  Almost  at  the  very  outset  of  his  professional 
career,  he  had  come  to  the  front  as  one  of  the  recognized 
leaders  of  the  very  able  bar  of  Yirginia,  and  had  been 

1  Maine  on  Popular  Government,  217,  218. 

2  Professor  A,  V.  Dicey,  in  1  Law  Quarterly  Review,  92. 
3 1  Law  Quarterly  Review,  97. 


141          New  Hampshire— Oration  by  Jeremiah  Smity. 

intrusted  with  the  conduct  of  important  litigations.  Ke- 
peatedly  a  member  of  the  Virginia  Legislature,  when 
grave  questions  were  pending,  he  had  also  served  in  the 
convention  called  to  determine  whether  the  State  should 
adopt  the  newly-framed  United  States  Constitution.  As 
a  member  of  the  special  embassy  to  France,  and  after 
wards  as  a  member  of  Congress  and  as  Secretary  of  State 
under  President  Adams,  he  had  had  experience  of  public 
life  on  a  large  scale. 

Up  to  the  time  of  Marshall's  appointment,  few  of  the 
most  important  constitutional  controversies  had  come  be 
fore  the  court.  Owing  to  the  indirect  method  of  raising 
questions,  the  court  had,  as  yet,  seldom  been  called  upon 
to  decide  important  points  in  this  branch  of  the  law. 
But  Marshall  and  his  colleagues  were  soon  confronted 
with  the  most  fundamental  of  all  these  questions:  Shall 
the  Constitution  be  a  living  reality,  or  the  mere  shadow 
of  a  name  ? 

If  an  addition  is  ever  made  to  the  number  of  days  cele 
brated  as  national  anniversaries,  I  submit  that  the  twenty- 
fourth  of  February  may  well  be  added  to  the  list.  Upon 
that  day,  ninety-eight  years  ago,  the  Supreme  Court  of  the 
United  States,  speaking  through  its  Chief  Justice  in  the 
famous  case  of  Marbury  v.  Madison,1  decided  that  if  an 
act  passed  by  the  legislative  body  conflicts  with  the  Con 
stitution,  it  shall  be  treated  as  a  nullity.  This  decision 
practically  involves  the  affirmance  of  two  propositions, 
and  it  is  upon  the  second  of  these  propositions  that  par 
ticular  stress  should  be  laid  by  a  biographer  of  Marshall. 
The  propositions  here  affirmed  are :  First,  that  a  legisla 
tive  body  has  no  right  to  pass  an  act  which  violates  the 
Constitution.  Second,  that,  when  such  an  act  has  been 

1 1  Cranch,  137. 


John  Marshall  Memorial.  142 

passed  by  the  Legislature,  the  court  can  and  must  treat  it 
as  a  nullity,  i.  e.,  the  court  must  decide  the  particular  case 
pending  before  it  just  as  if  such  an  act  had  never  been 
placed  upon  the  statute  book.  The  affirmance  by  the 
court  of  proposition  1,  if  not  followed  by  the  affirmance 
of  proposition  2,  would  have  been  an  empty  thunderbolt. 
Such  a  course  would  find  its  parallel  in  President  Buch 
anan's  message  of  December,  1860.  In  that  celebrated 
document  Mr.  Buchanan  vigorously  denied  the  right  of 
secession,  but  practically  admitted  that,  should  secession 
be  attempted,  there  was  no  remedy,  because,  in  his  view, 
Congress  had  no  right  to  coerce  a  State.  Ko  such  lame 
and  impotent  conclusion  was  reached  by  Marshall  and 
his  colleagues.  They  held  that  there  was  a  remedy  for 
unconstitutional  legislation,  that  it  was  their  own  pecul 
iar  province  as  judges  to  apply  that  remedy,  and  they 
did  then  and  there  apply  it. 

Our  indebtedness  to  Marshall  in  this  connection  is  not 
only  based  on  the  fact  that  he  decided  rightly,  but  also 
on  the  fact  that  he  stated  the  reasons  for  this  decision  so 
forcibly  that  no  lawyer  can  gainsay  them.  Two  of  the 
most  effective  portions  of  his  opinion  are:  the  paragraphs 
where  he  puts  a  series  of  deadly  dilemmas;  and  the  sen 
tences  in  which  he  presents  the  practical  results  of  the 
opposite  view  in  the  shape  of  a  reductio  ad  absurdum.1 
But  the  entire  opinion  as  to  the  power  and  duty  of  the 
court  to  disregard  an  unconstitutional  act  fully  deserves 

/the  eulogium  of  Chancellor  Kent,  who  calls  it  uan  argu 
ment  approaching  to  the  precision  and  certainty  of  a 
mathematical  demonstration." 2  Many  years  subsequently 
to  this  decision,  an  eminent  lawyer,  after  quoting  some 
of  the  most  forcible  sentences,  said :  "  These  are  now 

1 1  Crunch,  177, 178.  *  1  Kent's  Com.,  453. 


143         New  Hampshire— Oration  by  Jeremia^  Smith. 

truisms,  but  they  were  not  then,  and  Marshall,  more  than 
any  other  man,  has  made  them  to  be  truisms  now." l 

A  similar  result  had  previously  been  reached  by  subor 
dinate  courts  of  the  United  States,  and  by  some  State 
courts.  But  this  was  the  first  time  that  the  question  had 
been  argued  and  decided  on  a  great  stage,2  with  the 
whole  country  looking  on  "  and  Clio  attentive,  with  her 
pen  in  hand  and  her  page  before  her." 

Familiar  as  the  legal  profession  now  is  with  the  exer 
cise  of  this  judicial  function,  it  is  difficult  for  lawyers  of 
the  present  day  to  understand  the  doubts  of  our  legal  an 
cestors  as  to  its  existence,  or  to  realize  how  much  courage 
was  then  required  for  a  court  to  take  this  position.3  Al 
most  all  lawyers  of  that  day  had  been  born  subjects  of 
Great  Britain,  and  had  been  taught  that  the  British  Par 
liament  was  omnipotent.  Mr.  Rawle  has  clearly  pointed 
out  that,  although  the  United  States  Constitution  declared 
in  so  many  words  that  the  judicial  power  should  extend 
to  "  all  cases  arising  under  the  Constitution  and  laws  of 

v_5 

the  United  States,"  "yet  it  was  difficult  for  men  so 
trained  to  conceive  how  any  law,  which  the  legislative 
department  might  pass  and  the  executive  approve,  could 
be  set  aside  by  the  mere  judgment  of  a  court.  There 
was  no  precedent  for  it  in  ancient  or  modern  history."4 
The  contemporary  feeling  is  evidenced  by  the  fact  that, 
in  at.  least  two  cases  (one  in  Ehode  Island  and  the  other  in 
Ohio),  judges  of  State  courts  were  "  impeached  as  criminals 
for  refusing  to  enforce  unconstitutional  enactments;"  and 

1 1  American  Law  Review,  441. 

2  Constitutional  History  of  the  United  States  as  Seen  in  Develop 
ment  of  American  Law,  72-80. 

3  See  1  American  Law  Review,  439. 

*  Mr.  Rawle's  Address,  112  U.  S.,  Appendix,  756.    [See  post,  Vol. 
Ill,  408.] 


John  Marshall  Memorial.  144 

one  of  these  instances  occurred  five  years  subsequently 
to  the  decision  in  Marbury  v.  Madison.1  It  is  true  that 
in  both  cases  the  impeachment  proceedings  failed  to  ef 
fect  a  removal ;  but  in  one  of  the  cases  the  Legislature 
refused  to  re-elect  the  offending  judges  when  their  terms 
expired  at  the  end  of  the  year.  So  late  as  1822,  when  a 
Kentucky  judge  had  declared  a  State  statute  unconstitu 
tional,  an  attempt  was  made  to  have  him  removed  by  the 
Governor  upon  a  resolution  of  the  Legislature.  The  prop 
osition  received  a  large  majority  in  the  House,  but  failed 
for  want  of  the  requisite  two-thirds  vote.2  Two  years 
later,  in  1824,  an  attempt  was  made  in  the  Kentucky  Leg 
islature  to  remove  all  the  judges  of  the  Court  of  Appeals 
because  they  had  held  certain  statutes  unconstitutional. 
When  the  attempt  to  remove  failed  to  obtain  a  two-thirds 
vote,  the  Legislature  resorted  to  the  expedient  of  passing 
an  act  purporting  to  abolish  the  existing  court  and  to  es 
tablish  a  new  court ;  a  proceeding  which  kept  the  State 
in  a  turmoil  until  1826,  when  the  people  elected  a  Legis 
lature  which  sustained  the  old  court.3 

Nor  is  it  necessary  to  go  back  three  generations  to  show 
how  the  exercise  of  this  power  is  likely  to  be  regarded  by 
the  multitude.  It  is  true  to-day  that  many  citizens  feel 
that  the  judges  are  usurping  legislative  power  when  they 
treat  an  act  of  the  Legislature  as  void  because  it  conflicts 
with  the  Constitution.  It  seems  impossible  to  make  some 
people  understand  that  the  Legislature  for  the  time  being 
does  not  possess  unlimited  power.  "  I  am  the  State,"  was 
the  declaration  of  the  French  monarch.  "We  are  the 

1  Cooley's  Constitutional  Limitations,  160,  note  1. 

2  Simmer's  Life  of  Jackson,  125. 

3  2  Kentucky  Law  Journal,  71-80;   Sumner's  Life  of  Jackson,  126, 
127,  132-134. 


145         New  Hampshire — Oration  by  Jeremiafy  Smith. 

State,"  is  the  unuttered  belief  of  some  members  of  the 
Legislature.  They  would  indorse  the  argument  made  in 
the  Ohio  impeachment  case  —  that  the  action  of  the  court 
was  "  an  assault  upon  the  supremacy  of  the  Legislature." 
It  has  not  occurred  to  such  persons  that  the  Constitution 
emanated  from  the  people,  and  not  from  the  court.  Their 
claim,  reduced  into  plain  English,  is,  "  that  the  representa 
tives  of  the  people  are  superior  to  the  people  themselves." 
Chief  Justice  Lawrence  of  Illinois  rightly  said:  "What 
ever  respect  may  be  due  to  the  Legislature,  that  due  to  the 
Constitution  is  still  greater."1  It  could  be  wished  that 
every  newly-elected  member  of  the  Legislature  would  read 
the  passages  already  referred  to  in  Marshall's  opinion ;  and 
also  go  down  to  the  town  clerk's  office,  call  for  the  first 
volume  of  the  ISTew  Hampshire  Eeports,  and  read  page  201 
(a  part  of  Judge  Woodbury's  opinion  in  Merrill  v.  Sher- 
burne). 

I  desire  to  speak  within  bounds;  but  I  firmly  believe 
that  if  Marshall  and  his  colleagues  had  failed  to  deal 
rightly  with  this  question  in  A.  D.  1803,  none  of  their 
successors  would  have  done  so  in  later  years.  The  power 
of  the  court  to  treat  unconstitutional  laws  as  nullities 
would  have  been  of  no  more  account  than  the  veto  power 
of  the  British  crown  now  is,  and  the  Constitution  itself 
would  not  be  worth  the  parchment  upon  which  it  is  en 
grossed.  We  might  in  that  case  well  have  prefixed  to 
this  outwardly  imposing  instrument  the  motto:  "  Stat 
nominis  umbra" 

We  may  as  well  notice  here  the  charge  that  Marshall 
carried  out  on  the  bench  the  theories  which  he  had  pre 
viously  entertained  as  a  political  partisan.  No  doubt  he 

1 45  Illinois,  419. 
VOL.  I  — 10 


John  Marshall  Memorial.  146 

held,  at  the  date  of  his  appointment,  very  strong  views 
as  to  the  construction  and  enforcement  of  the  Constitu 
tion.  But  there  was  no  reason  why  he  should  not,  as  a 
judge,  act  upon  the  views  which  he  sincerely  entertained, 
and  which  he  subsequently  saw  no  cause  to  depart  from. 
It  would  have  been  impossible  for  either  President  Adams 
or  President  Jefferson  to  find  in  the  whole  country  a  sin 
gle  lawyer,  competent  for  the  Supreme  bench,  who  had 
not  formed  and  expressed  an  opinion  on  these  matters. 
This  class  of  questions  had  just  been  thoroughly  discussed 
in  the  debates  upon  the  adoption  of  the  Constitution.  The 
nation  had  decided  to  try  the  experiment  of  a  written 
constitution.  With  a  view  to  the  success  of  that  experi 
ment,  it  was  obviously  desirable  that  the  construction  of 
the  instrument  should  be  intrusted  to  those  who  favored 
its  adoption,  rather  than  to  its  opponents. 

In  this  connection  it  should  be  stated  that  Marshall, 
although  a  Federalist,  was  not  willing  to  go  all  lengths 
with  the  most  zealous  members  of  that  faction.  In  1798 
he  wrote  a  letter  to  a  newspaper,  expressing  an  unfavor 
able  opinion  of  the  pet  Federal  legislation  known  as  the 
Alien  and  Sedition  laws.1  In  consequence  of  this  com 
munication,  one  of  the  party  leaders,  Fisher  Ames,  went 
so  far  as  to  deny  the  soundness  of  Marshall's  Federalism.2 

Among  the  vexed  questions  remaining  to  be  decided 
was  one  second  in  importance  only  to  that  discussed  in 
Marbury  v.  Madison.  By  the  latter  decision  it  was  set 
tled,  that  a  statute  conflicting  with  the  United  States  Con 
stitution  would  be  treated  as  a  nullity  in  any  litigation 

1  See  copy  of  letter  in  The  Columbian  Centinel  of  October  20, 1798. 
2 1  Life  and  Works  of  Fisher  Ames,  346.    The  writer  is  indebted  to 
a  friend  for  calling  his  attention  to  the  criticism  of  Ames. 


147          New  Hampshire— Oration  by  Jeremia^  SmUty. 

which  originated  in  the  United  States  courts.  But  how 
if  the  question  were  first  raised  in  a  State  court,  and  the 
State  court  should  happen  to  decide,  either  that  the  stat 
ute  was  constitutional,  or  that  the  court  would  not  treat 
even  an  unconstitutional  statute  as  a  nullity?  Could  the 
United  States  Supreme  Court  take  jurisdiction  upon  a  writ 
of  error,  and  effectually  reverse  the  judgment  of  the  State 
court?  This  question  was  passed  upon  in  the  United  States 
Supreme  Court,  in  1821,  in  the  well-known  case  of  Cohens 
v.  Virginia; l  and  was  rightly  decided  in  favor  of  the  ju 
risdiction  of  the  United  States  court.  One  of  the  most 
effective  passages  in  Marshall's  opinion  is  that  on  page 
377,  where  he  states  the  practical  results  of  the  opposite 
view  as  advocated  at  the  bar.  He  suggests  that  one  re 
sult  would  be  that  the  United  States  Constitution  would 
be  liable  to  receive  "  as  many  constructions  as  there  are 
States." 

But  the  legal  perils  of  the  republic  were  not  ended  by 
the  decisions  in  Mar  bury  v.  Madison,  and  Cohens  v.  "Vir 
ginia.  Another  vital  question  was  left  to  be  grappled 
with,  and  it  is  one  which  has  been  continually  recurring 
ever  since:  in  what  spirit  and  upon  what  principles  shall 
the  Constitution  be  interpreted?  There  were  then,  and 
there  still  are,  persons  who  would  construe  the  Constitu 
tion  in  the  same  hostile  spirit  which  courts  are  wont  to 
exhibit  in  regard  to  pleas  in  abatement:  every  intend- 
ment  to  be  made  against  it  and  none  in  its  favor.  To 
this  school  of  narrow  constructionists,  Marshall  did  not 
belong.  Such  men,  he  said,  would  "explain  away  the 
Constitution  of  our  country,  and  leave  it  a  magnificent 

1 6  Wheaton,  264. 


John  Marshall  Memorial  148 

structure,  indeed,  to  look  at,  but  totally  unfit  for  use;" 
or,  as  he  once  expressed  it,  "  a  splendid  bauble." 

His  guiding  principles  of  consitutional  interpretation 

may  be  summed  up  in  two  familiar  legal  maxims.    He 

proposed  to  construe  the  instrument,  ut  res  magis  valeat 

Juam  pereat.     And  he  proposed,  in  construing  the  words, 

co  take  into  account  the  subject-matter  of  the  instrument. 

/He  believed  that,  in  order  to  ascertain  the  meaning  of  a 

/  writing,  we  must  look  not  only  at  the  words,  but  also 

/  look  at  the  object  of  such  words  relating  to  such  a  mat- 

/   ter.  The  question  is  not,  what  might  these  words  signify 

/    if  used  in  some  other  connection,  but  rather,  what  is  the 

/     intention  which  these  words  express  when  used  in  such 

[      an  instrument  for  such  a  purpose. 

As  to  the  nature  of  the  instrument  he  was  not  misled 
by  false  analogies.  He  knew  that  the  so-called  "  rules  " 
of  construction  applicable  to  contracts  between  individu 
als,  to  wills,  or  even  to  ordinary  legislative  enactments, 
were  not  necessarily  and  always  applicable  to  a  constitu 
tion,  an  instrument  sui  generis.  "We  must  never  for 
get,"  he  once  said,  "  that  it  is  a  constitution  that  we  are 
expounding."  (4  Wheaton,  607.)  "  This  provision  is  made 
in  a  constitution  intended  to  endure  for  ages  to  come, 
and  consequently  to  be  adapted  to  the  various  crises  of 
human  affairs."  (4  Wheaton,  415.)  And  on  another  oc 
casion  he  said:  "A  constitution  is  framed  for  ages  to 
come  and  is  designed  to  approach  immortality  as  nearly 
as  human  institutions  can  approach  it."  (6  Wheaton, 
387.) 

He  realized  the  distinction  between  a  constitution  and 
a  code  of  laws.  He  believed  that  the  Constitution  was 
not  intended  to  contain  "  an  accurate  detail  of  all  the 
subdivisions  of  which  its  great  powers  will  admit,"  or  of 


149          New  Hampshire— Oration  by  Jeremia^  Smith. 

"all  the  means  by  which  they  may  be  carried  into  exe 
cution."  In  his  view  the  very  nature  of  the  instrument 
required  (and  its  framers  so  intended)  uthat  only  its 
great  outlines  should  be  marked,  its  important  objects 
designated,  and  the  minor  ingredients  which  compose 
those  objects  be  deduced  from  the  nature  of  the  objects 
themselves."  Hence  he  derived  the  doctrine  that  Con 
gress  has  implied  power  to  enact  appropriate  legislation 
to  carry  out  the  objects  aimed  at  by  the  Constitution. 
"  Let  the  end  be  legitimate,  let  it  be  within  the  scope  of 
the  Constitution,  and  all  means  which  are  appropriate, 
which  are  plainly  adapted  to  that  end,  which  are  not  pro 
hibited,  but  consist  with  the  letter  and  spirit  of  the  Con 
stitution,  are  constitutional."  (4  Wheaton,  421.) 

Again,  unlike  some  modern  judges,  Marshall  did  not 
refuse  to  declare  a  statute  unconstitutional  merely  be 
cause  the  Constitution  did  not  contain,  in  express  words, 
a  specific  prohibition  of  the  particular  legislation  in  ques 
tion.  In  the  great  case  of  McCulloch  v.  Maryland,  in 
sustaining  the  claim  of  the  United  States  Bank  that  it 

O 

was  exempt  from  the  power  of  a  State  to  tax  its  opera 
tions,  he  said:  "There  is  no  express  provision  for  the 
case;  but  the  claim  has  been  sustained  on  a  principle 
which  so  entirely  pervades  the  Constitution,  is  so  inter 
mixed  with  the  materials  which  compose  it,  so  interwoven 
with  its  web  or  blended  with  its  texture,  as  to  be  inca 
pable  of  being  separated  from  it  without  rending  it  into 
shreds."  (4  Wheaton,  426.) 

There  is  time  to  make  specific  reference  to  only  very 
few  of  Marshall's  decisions  on  constitutional  points.  A 
complete  list  of  all  his  decisions  on  constitutional  ques 
tions  may  be  found  in  the  appendix  to  an  excellent  essay 
by  Mr.  Henry  Hitchcock,  of  St.  Louis,  one  of  the  most 


John  Marshall  Memorial.  150 

eminent  lawyers  of  the  Middle  West.  The  essay  is  enti 
tled  "  Constitutional  Development  in  the  United  States 
as  Influenced  by  Chief  Justice  Marshall;"  and  it  con 
tains  able  comments  upon  some  of  the  leading  decisions. 
It  is  published  together  with  articles  by  other  writers  in 
a  book  whose  title  is  "Constitutional  History  of  the 
United  States  as  seen  in  the  Development  of  American 
Law." 

Two  specific  objections  as  to  the  methods  and  results 
of  Marshall's  interpretation  deserve  particular  notice. 

It  ma}7  be  said  that  the  court  has  held  constitutional 
provisions  applicable  to  modes  of  business  and  methods 
of  life  which  were  unknown  at  the  time  of  adopting  the 
Constitution.  Hence,  it  may  be  argued,  these  matters 
could  not  have  been  in  the  minds  of  the  framers,  and  it 
cannot  properly  be  said  that  they  intended  the  Constitu 
tion  to  apply  to  such  cases.  Let  us  test  the  practical 
working  of  this  argument,  by  applying  it  to  a  concrete 
case.  The  Constitution  gives  Congress  the  power  to  reg 
ulate  "  commerce."  The  only  method  of  commerce  by 
navigation  known  in  1787  was  that  carried  on  by  sailing 
vessels  and  canal  boats.  The  members  of  the  convention 
had  never  heard  of  such  a  thing  as  a  vessel  propelled  by 
steam.  Can  it,  therefore,  be  successfully  contended  that 
the  Constitution  was  intended  to  give  power  to  regulate 
commerce  by  water  only  when  carried  on  in  sailing  ves 
sels  or  canal  boats,  and  that  no  power  exists  to  regulate 
commerce  carried  on  by  steamboats?  This  contention 
is  based  on  an  entire  misconception  of  the  nature  and 
purpose  of  a  constitution.  Such  an  instrument  is  not  in 
tended  to  contain  a  multitude  of  specific  rules,  providing 
in  minute  detail  for  its  application  to  all  possible  situa- 


151         New  Hampshire—  Oration  by  JeremiaJi  Smitf?. 

tions,  present  or  future.  It  lays  down  broad  general 
principles  which  are  intended  to  be  applied  not  only  to 
the  present  conditions,  but  also  to  all  new  conditions 
arising  out  of  changes  in  the  methods  of  life.  "  Many 
cases,"  says  Mr.  Machen,  "  which  were  not  and  could 
not  have  been  specifically  in  the  minds  of  the  framers 
were  really  covered  by  their  general  concepts,  and  are, 
therefore,  in  a  true  sense,  included  within  their  actual 
intention."  Under  the  word  "  commerce  "  they  intended 
to  include  "all  conceivable  means — whether  at  that 
time  known  or  unknown  —  by  which  commodities  might 
be  bought,  sold,  and  exchanged."1 

The  point  is  put  with  great  force  by  Mr.  Justice  Brewer 
in  the  Debs  Case,  158  United  States  Reports,  564,  591 
(A.  D.  1895),  when  asserting  the  power  of  Congress  to 
control  commerce  carried  on  by  railroads.  "Constitu 
tional  provisions  do  not  change,  but  their  operation  ex 
tends  to  new  matters  as  the  modes  of  business  and  the 
habits  of  life  of  the  people  vary  with  each  succeeding 
generation*  The  law  of  the  common  carrier  is  the  same 
to-day  as  when  transportation  on  land  was  by  coach  and 
wagon,  and  on  water  by  canal  boats  and  sailing  vessels, 
yet  in  its  actual  operation  it  touches  and  regulates  trans 
portation  by  modes  then  unknown,  the  railroad  train  and 
the  steamship.  Just  so  is  it  with  the  grant  to  the  Na 
tional  Government  of  power  over  interstate  commerce. 
The  Constitution  has  not  changed.  The  power  is  the 
same.  But  it  operates  to-day  upon  modes  of  interstate 
commerce  unknown  to  the  fathers,  and  it  will  operate 
with  equal  force  upon  any  new  modes  of  such  commerce 
which  the  future  may  develop." 

1 14  Harvard  Law  Review,  212, 


John  Marshall  Memorial.  152 

But  there  is  a  more  serious  complaint. 

It  is  said  that  Marshall  sometimes  construed  a  consti 
tutional  provision  in  a  sense  exactly  contrary  to  the  in 
tention  and  understanding  of  the  framers,  as  evidenced 
by  their  practical  construction  for  many  years  after  the 
adoption  of  the  Constitution. 

My  answer  to  this  complaint  is  a  demurrer. 

The  practical  construction  or  the  distinctly  expressed 
contemporaneous  opinion  of  the  framers  cannot  be  al 
lowed  to  control  their  own  language  in  the  Constitution 
itself,  when  such  language  is  explicit  and  unambiguous. 
Of  course,  nobody  denies  that,  in  a  case  where  the  mean 
ing  of  the  language  is  open  to  serious  doubt,  the  con 
temporaneous  construction  of  the  framers  is  entitled  to 
be  considered,  and  its  evidentiary  weight  may  sometimes 
turn  the  scale.  But  not  so  when  the  language  is  clear. 
Then  we  must  apply  the  general  rule,  that  the  states 
men  who  framed  the  Constitution  and  the  people  who 
adopted  it  "  must  be  understood  to  have  employed  words 
in  their  natural  sense,  and  to  have  intended  *what  they 
have  said." 1 

One  of  the  strongest  illustrations  of  this  principle  is 
afforded  by  a  case  decided  by  the  Supreme  Court  of  New 
Hampshire,  in  reference  to  the-  meaning  of  a  clause  in 
the  State  Constitution.  The  New  Hampshire  Constitu 
tion,  which  took  effect  in  1784,  provides  that, —  "  In  the 
government  of  the  State,  the  three  essential  powers 
thereof,  to  wit,  the  legislative,  executive,  and  judicial, 
ought  to  be  kept  as  separate  from  and  independent  of 
each  other,  as  the  nature  of  a  free  government  will  admit. 
.  .  ."  (Bill  of  Eights,  Article  37.)  Looking  only  at 
the  plain  language  of  this  article,  no  man  would  say  that 

i  Marshall,  C.  J.,  9  Wheaton,  188. 


153         New  Hampshire — Oration  by  Jeremiah  Smith. 

the  Legislature  could  grant  a  new  trial  of  a  case  in  court, 
any  more  than  the  court  could  enact  a  statute.  Yet,  for 
thirty-three  years  after  the  adoption  of  this  constitutional 
provision,  successive  Legislatures  (every  one  of  which 
probabty  contained  some  members  who  were  also  mem 
bers  of  the  Constitutional  Convention  in  1784  or  in  1792) 
assumed  the  power  of  granting  new  trials.  The  validity 
of  such  legislation  was  occasionally  questioned ;  and  the 
earlier  (unreported)  decisions  of  the  court  are  understood 
to  have  been  contradictory,  sometimes  sustaining  and 
sometimes  disallowing  such  statutes.  But  the  Legisla 
ture  persisted  in  the  custom  of  passing  such  acts.  At 
last,  in  1818,  the  question  was  fully  considered  by  the 
court,  and  a  result  reached  which  has  ever  since  been 
adhered  to.  The  three  judges  of  that  court  (and  an  ex 
cellent  court  it  was)  were  all  Jeffersonian  Democrats, 
recently  appointed  by  Governor  Plumer  after  the  Fed 
eralists  had  been  finally  and  forever  ousted  from  power 
in  the  State. 

How  did  Richardson,  Bell,  and  "Woodbury  decide  ?  Did 
they  say  that  the  long  usage  of  the  Legislature  to  grant 
new  trials  afforded  conclusive  evidence  of  the  meaning  of 
the  Constitution,  and  controlled  the  plain  language  of 
that  instrument  ?  On  the  contrary,  they  held  (in  a  mas 
terly  opinion  by  Judge  Wood  bury)  that  the  act  of  the 
Legislature  was  an  attempted  exercise  of  judicial  power, 
and  therefore  unconstitutional ;  and  they  explicitly  said : 
"  ISTor  could  it  be  pretended  on  any  sound  principles,  that 
the  usage  to  pass  them,  if  uninterrupted  for  the  last 
twenty-seven  years,  would  amount  to  a  justification,  pro 
vided  both  the  letter  and  the  spirit  of  the  written  char 
ter  of  our  liberties  forbid  them."1 

1  Merrill  v.  Sherburne,  1  N.  H.  199,  p.  217. 


John  Marshall  Memorial.  154 

The  same  doctrine  has  been  reiterated  and  further 
illustrated  in  more  recent  decisions  of  the  New  Hamp 
shire  court.  Thus  Judge  Doe,  in  54  N.  II.,  p.  634,  says 
that  the  legal  meaning  of  the  Constitution  is  "  not  to  be  as 
certained  by  summoning  the  thousands  who  voted  for  it  to 
testify  what  they  understood  its  effect  would  be.  Consti 
tutional  rights  have  a  better  foundation  than  hearsay  and 
parol  evidence." 

We,  of  the  present  generation,  are  not  concerned  to 
assert  that  Marshall  was  always  right,  or  that  he  has 
spoken  the  last  word  on  each  and  every  subject  which  he 
discussed.  Probably  his  worst  mistake,  according  to 
our  modern  notions,  is  to  be  found  in  his  dissenting  opin- 
ion/m  Bank  of  United  States  v.  Dandridge,1  where  he 
/contended  that  a  corporation  can  act  only  by  writing. 
He  said,  and  said  truly,  that  the  impersonal  entity  (the 
"legal  person  ")  has  no  voice  (i.  e.,  no  mouth  or  tongue) 
with  which  to  speak.  Hence  he  concluded  that  its  will 
must  be  communicated  solely  in  writing.  He  overlooked 
the  fact  that  the  impersonal  entity  has  no  hand  with 
which  to  write,  any  more  than  it  has  a  tongue  with  which 
to  speak.  His  view,  carried  out  to  its  logical  conclusion, 
would  debar  corporations  from  transacting  any  business 
whatever.  Indeed,  it  would  prevent  the  initial  step  of 
organizing  the  corporation. 

Of  all  Marshall's  decisions,  the  one  most  frequently 
doubted  in  this  State  is  that  in  the  Dartmouth  College 
case.  No  lawyer  likes  to  be  compelled  to  choose  between 
the  conflicting  views  of  two  such  jurists  as  Richardson 
and  Marshall.  It  seems  presumptuous  to  differ  from 
either;  still  more  so  to  differ  from  both.  And  yet  I, for 
one,  am  inclined  to  say  that  loth  these  great  judges  were 

1 12  Wheaton,  64,  pp.  91-94,  97,  10& 


155         New  Hampshire — Oration  by  Jeremiafy  Smith. 

wrong;  that  while  each  was  right  on  some  points,  yet 
each  was  wrong  on  other  points;  that  Eichardson  erred 
when  he  held  that  the  amendatory  statutes  were  not  in 
violation  of  the  Constitution  of  New  Hampshire ;  and  that 
Marshall  erred  when  he  held  that  these  statutes  were  in 
violation  of  the  Constitution  of  the  United  States.  In 
other  words,  I  incline  to  indorse  the  views  on  this  subject 
expressed  by  Judge  Doe  in  his  opinion  in  Dow  v.  North 
ern  R.  E.,  67  N.  II.  1,  pp.  27-53  (also  printed,  in  sub 
stance,  in  6  Harvard  Law  Review,  161  and  213,  under  the 
title  "A  New  Yiew  of  the  Dartmouth  College  Case"). 
Judge  Doe  thinks  that  the  State  had  power  to  revoke  the 
charter,  but  had  not  power  to  take  control  of  the  corpo 
rate  property.  He  believes  that  the  State's  attempt  to 
control  the  management  of  the  trust  funds  is  in  conflict 
with  the  provisions  of  the  State  Constitution  relative  to 
deprivation  of  property,  immunities,  and  privileges.  So 
far  as  the  State  Constitution  is  concerned,  there  appears 
to  be  no  satisfactory  answer  to  the  powerful  argument  of 
Mr.  Mason,  which  is  fully  reported  in  the  reprint  of  the 
Dartmouth  College  case  in  65  N.  H.  473-497.  To  avoid 
misapprehension,  it  should  be  added  that  the  only  clause 
in  the  United  States  Constitution  which  was  then  under 
discussion  is  the  prohibition  against  the  passage  of  laws 
impairing  the  obligation  of  contracts.  The  case  was  de 
cided  long  before  the  adoption  of  the  Fourteenth  Amend 
ment.  The  reasoning  of  both  Mr.  Mason  and  Judge  Doe 
clearly  demonstrates  that  the  New  Hampshire  Statutes 
of  1816,  if  enacted  to-day,  would  be  in  violation  of  that 
amendment.  And  it  should  further  be  said  that  the  rea 
soning  in  Marshall's  opinion  tends  irresistibly  to  the  same 
conclusion.  His  opinion  is  very  strong  to  the  point  that 
the  trustees  of  the  college  have  a  locus  standi  in  court  to 


John  Marshall  Memorial.  156 

question  the  validity  of  the  amendatory  statutes;  and 
also  to  the  point  that  the  amendments  have  the  effect  of 
totally  changing  the  system  of  managing  the  corporate 
affairs,  substituting  the  will  of  the  State  for  the  will  of 
the  donor.  His  error,  if  error  there  was,  is  in  the  asser 
tion  that  the  grant  of  a  corporate  charter  involves  a  con 
tract  on  the  part  of  the  State,  within  the  meaning  of  the 
above-quoted  clause  of  the  United  States  Constitution. 
f  That  Marshall  made  occasional  mistakes  may  be  safely 
Ladmitted  without  seriously  detracting  from  his  judicial 
reputation.  After  making  all  reasonable  allowance  for 
errors,  the  fact  remains  that  these  errors  are  very  few  in 
proportion  to  the  whole  number  of  his  decisions.  We 
doubt  whether,  in  any  department  of  human  effort,  an 
other  modern  instance  can  be  found  of  one  who  had  to 
travel  over  a  new  country,  blazing  his  path  through  an 
hitherto  unexplored  forest,  and  yet  lost  his  way  so  seldom 
or  left  behind  him  so  few  erroneous  guideposts  to  mislead 
posterity. 

Since  the  Civil  War  the  trend  of  public  opinion  has  been 
in  favor  of  centralization,  and  of  what  may  be  termed 
"nationality."  Indeed,  some  thoughtful  persons  have 
now,  for  many  years,  believed  that  one  of  the  future  dan 
gers  of  the  republic  consists  in  the  tendency  to  unduly 
enlarge  the  sphere  and  the  power  of  the  central  govern 
ment.  But  in  the  period  between  the  election  of  Wash 
ington  and  the  inauguration  of  Lincoln,  the  drift  was  in 
the  contrary  direction.  In  those  years  it  was  often  an 
unpopular  thing  to  contend  that  the  central  government 
should  be  allowed  to  fill  its  proper  sphere,  and  exercise 
its  proper  powers.  The  men  who  then  stood  in  the  gap, 
and  battled  for  views  now  generally  recognized  as  correct, 
are  to-day  regarded  as  public  benefactors. 


157         New  Hampshire — Oration  by  Jeremiafy  Smiffy. 

Of  all  the  persons,  besides  Washington,  who  were  promi 
nent  anywhere  in  the  years  from  1789  to  1861,  there  are 
three  who  stand  out  pre-eminent  as  promoters  of  the 
strength  and  durability  of  the  National  Government.  They 
are  Hamilton,  Webster,  and  Marshall.  I  would  not  de 
tract  one  iota  from  the  praise  due  to  Hamilton's  construct 
ive  and  far-seeing  statesmanship.  Nor  would  I  belittle 
the  stately  eloquence  and  powerful  logic  of  Webster's 
anti-nullification  speeches.  But  I  believe  that  the  unity 
of  the  Nation,  in  other  words  "American  nationality," 
was  advanced  more  by  the  decisions  of  Marshall  than  by 
the  combined  efforts  of  Hamilton  and  Webster.  Had  it 
not  been  for  Marshall's  work,  the  Union  could  hardly 
have  withstood  the  strain  of  the  Civil  War. 

You  will  notice  that, in  speaking  of  Marshall's  judicial 
labors,  I  am  confining  myself  almost  wholly  to  his  decis 
ions  on  constitutional  questions.  His  opinions  on  other 
branches  of  jurisprudence  take  very  high  rank.  But  the 
limits  of  the  present  occasion  do  not  permit  a  survey  of 
them.  Nor  can  I  pause  here  to  discuss  Marshall's  char 
acteristics  as  a  nisiprius  judge;  or,  to  describe  the  his 
toric  trial  of  Aaron  Burr,  at  which  he  presided,  holding 
the  scales  of  justice  "  with  absolutely  even  hand." l 

A  few  words  may,  however,  be  said  in  regard  to  his 
relations  with  his  colleagues  on  the  Supreme  bench.  It 
is  not  uncommon  to  speak  of  the  court  as  though  it  were 
composed  of  Marshall  alone.  In  fact,  he  had  divers  able 
and  efficient  co-laborers,  and  he  himself  woi»ld  have  been 
the  last  man  to  disparage  the  value  of  their  assistance.  His 
prominence  in  the  public  mind  is  due,  not  merely  to  the 

i  See  Mr.  Rawle's  comments  on  the  Burr  trial  in  his  address  printed 
in  112  U.  S.,  Appendix,  758-759.  [See  post,  Vol.  Ill,  40aj 


John  Marshall  Memorial.  158 

general  opinion  that  he  was  intrinsically  the  ablest  of  the 
judges,  but  also  to  the  fact  that  he  acted  as  the  mouth 
piece  of  the  court  in  a  very  large  proportion  of  cases. 
According  to  Mr.  Hitchcock's  figures,  Marshall,  during 
his  thirty-four  years  of  service,  delivered  the  opinion  of 
the  court  in  nearly  half  of  all  the  cases  decided,  and  de 
livered  the  opinion  in  more  than  half  of  the  cases  upon 
questions  of  constitutional  law.  Undoubtedly  the  Chief 
Justice  was  a  great  power  in  the  consultation  room,  and 
had  immense  influence  over  his  associates.  But  that  in 
fluence  was  due  to  force  of  intellect  and  character;  not 
to  obstinacy,  nor  to  a  disposition  to  treat  a  difference  of 
legal  opinion  as  a  matter  of  personal  offense.  To  the  ex 
tent  of  his  influence,  both  friends  and  foes  can  be  sum 
moned  to  testify.  In  1810,  Jefferson,  writing  to  Presi 
dent  Madison  advocating  the  appointment  of  Tyler  to 
the  Supreme  Court  in  case  an  expected  vacancy  should 
occur,  said :  '*  It  will  be  difficult  to  find  a  character  of 
firmness  enough  to  preserve  his  independence  on  the  same 
bench  with  Marshall." !  Jefferson  believed,  as  the  same 
letter  shows,  that  Marshall's  influence  was  due  to  cunning 
and  sophistry.  This  theory  seems  to  me  effectually  dis 
proved  by  the  relation  which  Judge  Story  for  more  than 
twenty  years  sustained  to  his  chief.  Story  went  upon 
the  bench  an  ardent  young  disciple  of  Democracy.  He 
soon  became  an  enthusiastic  admirer  of  Marshall,  con 
curred  in  most  of  his  constitutional  opinions,  and  loved 
him  with  devoted  affection.  Could  a  man  of  Story's  in 
tellect  have  «been  systematically  deceived  for  twenty- 
three  years  by  "  cunning  and  sophistry  ?  "  The  answer 
is  not  doubtful.  It  was  the  intrinsic  merit  of  Marshall, 

l  Ford's  Edition  of  the  Writings  of  Jefferson,  voL  ix,  p.  275. 


159         New  Hampshire — Oration  by  Jeremiafy 

both  intellectually  and  morally,  which  accounts  for  his 
influence  over  his  gifted  associate. 

Marshall's  judicial  style,  as  it  appears  in  his  constitu 
tional  opinions,  we  may  well  describe  in  the  words  recently 
used  by  Herbert  Paul  in  reference  to  Dean  Swift.  "  Ab 
solute  and  utter  simplicity,"  is  its  distinguishing  mark. 
It  leaves  the  reader  "  face  to  face  with  the  precise  idea 
which  the  writer  wished  to  convey."  During  the  long 
years  since  those  opinions  were  first  reported,  there  have 
been  occasional  discussions  as  to  whether  his  views  were 
correct,  but  there  has  seldom,  if  ever,  been  any  doubt  as 
to  what  his  views  actually  were.  In  those  opinions  we 
find  no  needless  display  of  learning,  no  collateral  digres 
sions,  no  talking  for  momentary  effect,  and  no  attempts 
at  fine  writing.  Indeed,  there  is  an  entire  absence  of  the 
defects  which  so  often  mar  judicial  opinions.  In  him 
there  is  no  "  frequency  of  flat,  unnecessary  epithets,"  nor 
the  "  folly  of  using  old  threadbare  phrases,"  nor  are  his 
opinions  made  up  of  poorly-arranged  quotations  from 
other  men,  constituting  what  has  aptly  been  termed  "  a 
manifest  incoherent  piece  of  patchwork."  Above  all, 
there  is  no  "  irrelevant  eloquence."  His  motto  was  said 
to  be:  "  Aim  exclusively  at  strength."  And  in  this  con 
nection  it  should  be  noticed  that  there  is  seldom  any  flaw 
in  his  logical  processes.  If  his  premises  are  once  ad 
mitted,  his  conclusion  generally  follows  beyond  all  ques 
tion.  Of  the  effect  of  Marshall's  moral  qualities  upon 
his  style,  I  shall  speak  later. 

The  Chief  Justice  was  not  what  would  be  called  "a  great 
"book  lawyer"  While  he  had  a  fair  knowledge  of  the  books, 
yet  his  strongest  intellectual  points  were  his  intuitive  per 
ception  of  justice,  his  wonderful  power  of  analysis,  and  his 


John  Marshall  Memorial.  160 

faculty  of  close  and  logical  reasoning.  "  Probably,"  sa}rs 
Professor  Parsons,  "  the  decisions  of  no  [other]  eminent 
judge  have  so  few  citations  of  authorities."  .  .  .  "It 
used  to  be  said  of  him  that,  when  he  had  formed  his  con 
clusions,  he  would  say  to  his  colleague,  *  There,  Story,  is 
the  law;  now  you  must  find  the  authorities.'"  .  .  . 
Story  himself  said:  "When  I  examine  a  question,  I  go 
from  headland  to  headland,  from  case  to  case;  Marshall 
has  a  compass,  puts  out  to  sea,  and  goes  directly  to  his 
result."1 

It  is  natural  for  us  to  compare  Marshall's  judicial  style 
and  tone  with  that  of  some  of  our  New  Hampshire  judges. 
One  finds  in  him  the  crystal-like  clearness  of  Samuel  D. 
Bell,  the  nervous  English  of  Ira  Perley,  the  sledge-hammer 
force  of  Joel  Parker,  the  weighty  judicial  tone  of  William 
S.  Ladd,  the  incisive  legal  reasoning  of  Alonzo  P.  Car 
penter,  and  the  originality  of  thought  and  statement 
which  so  strongly  characterized  Charles  Doe.  But  if  I 
had  to  select  the  New  Hampshire  judge  whose  style  and 
whose  matter,  take  it  all  in  all,  most  resembles  that  of 
Marshall,  I  should  be  inclined  to  name  none  of  these,  but 
rather  to  name  his  contemporary,  Chief  Justice  Richard 
son. 

If  we  seek  a  wider  field  of  comparison,  taking  in  the 
whole  country  and  looking  at  statesmen  as  well  as  jurists, 
we  shall  find  strong  points  of  resemblance  between 
Marshall  and  Lincoln.  Both  have  the  same  faculty  of 
* embalming  in  one  short,  happy  phrase "  an  important 
principle;  both  go  directly  to  the  point;  both  are  re 
markable  for  their  power  of  clearly  stating  the  issue 
and  working  out  a  reductio  ad  dbsurdum  of  the  opposing 
view.  Cardinal  Newman  has  said :  "  Half  the  controver- 

1 1  American  Law  Review,  436. 


161         New  Hampshire— Oration  by  Jeremiah  Smitr*. 

sies  in  the  world  are  verbal  ones,  and  could  they  be  brought 
to  a  plain  issue,  they  would  be  brought  to  a  prompt  termi 
nation.  .  .  .  When  men  understand  what  each  other 
mean,  they  see,  for  the  most  part,  that  controversy  is  either 
superfluous  or  hopeless."  Marshall  and  Lincoln  had  each 
the  happy  power  of  stating  their  own  views  so  as  to  make 
their  meaning  unmistakable,  and  they  also  had  the  power 
to  analyze  their  opponent's  statement  and  reduce  it  to  its 
lowest  terms,  showing  exactly  what  it  amounted  to,  and 
what  its  practical  effect  would  be.  A  reply  to  their  state 
ments  was  generally  a  hopeless  task. 

Years  ago  the  Supreme  Court  of  New  Hampshire  had 
announced  the  result  arrived  at  in  a  case  of  great  public 
interest,  but  their  reasons  had  not  yet  been  written  out  for 
publication  in  the  reports.  In  this  stage  of  the  matter, 
one  of  the  judges  was  conversing  with  a  legal  friend  as  to 
the  manner  in  which  the  views  of  the  court  should  be  pre 
sented.  His  friend  advised  him  to  "  write  an  opinion 
which  the  selectmen  could  understand."  Marshall  never 
needed  such  advice.  "  His  opinions,"  says  Mr.  Hillard, 
"  are  remarkable  for  addressing  themselves  rather  to  the 
common  than  to  the  legal  mind,  .  .  .  and,  as  a  general 
rule,  they  can  be  followed  and  understood  by  any  strong- 
minded  man,  whether  in  the  profession  or  not."1  To  bor 
row  again  from  Herbert  Paul,  we  may  say  of  Marshall : 
"  There  were  very  few  things  which  he  could  not  under 
stand,  and  whatever  he  could  understand  he  could  explain 
to  the  humblest  capacity." 

In  what  has  been  said  of  Marshall's  judicial  style  I  wish 
to  be  understood  as  using  the  expression  "  style  "  in  a 
larger  sense  than  is  sometimes  attached  to  it.  I  mean 
something  more  than  the  selection  of  words  or  the  fram- 

1 42  North  American  Review,  227. 

VOL.  I— 11 


John  Marshall  Memorial.  162 

ing  of  sentences.  I  mean  to  include  "  the  entire  scheme  " 
of  the  opinion,  "  the  proportion  of  the  several  parts  to  the 
whole  and  to  each  other."  No  writing  can  approach  per 
fection  unless  the  author  has  "the  sense  of  proportion, 
which  the  Greeks  called  by  an  expressive  term,  '  the  art 
of  measuring.' "  This  is  to  be  found  in  Marshall.  The 
space  given  to  each  topic  is  in  proper  ratio  to  its  impor 
tance,  and  the  arrangement  is  such  that  each  topic  is  dis 
cussed  in  its  proper  place  and  discussed  only  once. 

But  over  and  above  all  manifestations  of  intellectual 
ability  the  opinions  of  Marshall  evince  a  far  higher  char 
acteristic,  that  of  intellectual  honesty ;  or,  as  Martineau 
puts  it  in  reference  to  John  Stuart  Mill,  "  intellectual 
conscientiousness."  There  are  no  evasions  of  difficulties. 
Every  point  raised  by  counsel  on  the  losing  side  is  taken 
up  and  fully  discussed.  The  workings  of  the  mind  of  the 
great  Chief  Justice  are  laid  bare.  As  was  said  of  a  great 
writer:  "There  is  no  veil,  however  thin,  between  the 
mind  of  the  author  and  the  mind  of  the  public."  There 
is  not  only  great  intellectual  power,  but  also  "absolute 
transparency  of  intellect."  •" 

And  this  brings  us  to  what  is,  after  all,  the  great  dis 
tinguishing  feature  in  Marshall's  life;  the  real  secret  of 
his  extraordinary  success  fully  as  much  as  his  great  in 
tellect.  And  that  is  his  high  personal  character.  There 
was  a  man  behind  the  magistrate.  John  Marshall  was 
pre-eminently  single  minded.  His  whole  life  was  per 
vaded  by  an  overpowering  sense  of  duty  and  by  strong 
religious  principle.  A  firm  believer  in  the  Christian  re 
ligion,  his  life  was  in  accord  with  his  belief.  The  distin 
guishing  trait  of  his  life  and  character  was  one  which 
has  been  attributed  to  two  of  the  recent  heads  of  the 


163         New  Hampshire—  Oration  by  Jeremial? 

English  judiciary.  At  the  proceedings  in  court  in  mem 
ory  of  Lord  Chief  Justice  Eussell,  the  Attorney-General, 
Sir  Eobert  B.  Finlay,  said  of  the  late  Chief  Justice:  "  He 
was  simple  with  the  simplicity  of  a  great  and  kindly 
nature."  A  few  years  earlier,  Tennyson  was  reading 
aloud  to  some  friends  his  "  Ode  on  the  Death  of  the  Duke 
of  Wellington."  After  pronouncing  the  lines  — 

"  And,  as  the  greatest  only  are, 
In  his  simplicity  sublime"  — 

the  poet  paused,  and  said  there  was  one  man  only  in  the 
present  time  to  whom  these  lines  applied.  The  man  thus 
singled  out  by  Tennyson  as  sublime  in  his  simplicity  was 
the  former  Lord  Chancellor  of  England,  Eoundell  Palmer, 
Earl  of  Selborne.  So  we  may  truly  say  of  our  own  great 
Chief  Justice  that  his  most  marked  characteristic  was  sim 
plicity,  using  that  term  in  its  highest  and  best  sense. 

It  is,  I  believe,  largely  to  this  trait  of  simplicity  of 
mind  and  heart  that  we  owe  the  charm  and  the  effect  of 
Marshall's  judicial  style. 

If  you  will  look  at  Dean  Swift's  "  Letter  to  a  Young 
Clergyman  "  (which  ought  to  be  made  a  subject  of  study 
in  all  theological  seminaries),  you  will  find  that  that 
great  master  of  the  English  tongue  affirms  that  faults  in 
style  are,  nine  times  out  of  ten,  owing  to  affectation 
rather  than  to  want  of  understanding.  When  men  de 
part  from  the  rule  of  using  the  proper  word  in  the  proper 
place,  it  is  usually  done  in  order  "  to  show  their  learning, 
their  oratory,  their  politeness,  or  their  knowledge  of  the 
world."  "  In  short,"  says  the  Dean,  "  that  simplicity, 
without  which  no  human  performance  can  arrive  to  any 
great  perfection,  is  nowhere  more  eminently  useful  than 
in  this."  So  a  great  modern  preacher  (James  Martineau) 
says:".  .  .  the  excessive  eagerness  about  reputation 


John  Marshall  Memorial.  164 

produces  a  thousand  pitiable  distortions  of  understanding. 
In  one  it  takes  the  shape  of  a  determination  to  be  orig 
inal  [which,  I  suppose,  never  befell  any  man  by  delib 
erate  resolve].  ...  In  another  it  passes  into  an 
opposite  folly  —  the  pride  of  being  peculiarly  moderate 
and  sound.  .  .  ." 

I  defy  anyone  to  find  traces  of  these  failings  in  the 
opinions  of  John  Marshall. 

But  some  one  may  say:  "You  are  pronouncing  an  un 
qualified  eulogy;  you  are  describing  an  absolutely  per 
fect  character.  Are  you  not  falling  into  the  common 
error  of  biographers,  that  of  making  an  idol  of  their  sub 
ject?"  Such  a  questioner  may  incline  to  agree  with  the 
late  Master  of  Balliol,  who  said:  A  man's  friends  ual- 
Avays  think  it  necessary  ...  to  tell  lies  about  him ; 
they  leave  out  all  his  faults  lest  the  public  should  exag 
gerate  them.  But  we  want  to  know  his  faults  —  that  is 
probably  the  most  interesting  part  of  him."  L 

Most  people  believe  in  the  old  proverb:  "There  never 
was  yet  a  very  great  man  without  some  very  great  folly 
annexed  to  him."  But  the  late  Professor  Parsons  said : 
"This  is  true  of  all  the  men  I  have  ever  known,  except 
Chief  Justice  Marshall.  .  .  .  " 2  It  is  certain  that 
Marshall's  faults,  if  he  had  any,  are  hard  to  discover. 
Suppose,  however,  that  one  were  compelled  to  serve  as 
the  Devil's  Advocate,  whose  official  duty  it  is  to  urge 
objections  to  the  proposed  canonization  of  a  deceased 
person.  Is  there  any  fact  which  would  furnish  an  argu 
ment  against  putting  John  Marshall  on  the  list  of  saints  ? 
I  can  think  of  but  one  plausible  objection,  a  mental 

i  Life  of  Jowett,  vol.  2,  276.  22  Bench  and  Bar,  304. 


165          New  Hampshire— Oration  by  Jeremiah  Smith. 

characteristic,  which  he  probably  shared  in  common 
with  almost  every  public  man  of  his  time;  and  that  is 
failure  to  do  justice  to  the  motives  of  political  opponents. 
A  friend,  who  has  made  careful  investigation,  tells  me 
that  he  has  found  no  evidence  even  of  this  fault.  Still  I 
cannot  help  supposing  that  it  existed.  After  making, 
however,  all  deduction  for  this  defect,  it  is  safe  to  say 
that,  among  all  the  Federal  leaders,  there  are  not  to  be 
found  three  whiter  characters  than  George  Washington, 
John  Jay,  and  John  Marshall. 

But  while  the  verdict  of  posterity  is  overwhelmingly 
in  favor  of  Marshall,  yet  it  must  be  frankly  admitted 
that  the  opinion  of  his  contemporaries  was  by  no  means 
unanimous  in  his  favor.  No  sketch  of  his  life  can  be 
complete  which  omits  to  mention  the  complaints  of  his 
critics. 

Severe  and  unjust  criticism  is  the  common  experience 
of  judges,  and  there  is  an  especial  reason  why  judges  of 
the  United  States  Supreme  Court  should  be  liable  to  this 
fate.  They  frequently  have  to  pass  upon  matters  of  pub 
lic  interest,  concerning  which  the  people  have  already 
taken  sides,  and  upon  which  partisan  passions  have  been 
excited.  And  dissatisfaction  is  especially  likely  to  be 
manifested  when  the  members  of  the  court  belong  to  a 
political  party  which  is  opposed  to  the  existing  adminis 
tration.  How  President  Jefferson  chafed  under  the  yoke 
of  such  a  court  is  apparent  from  his  letters.  In  Decem 
ber,  1801,  he  said  of  the  Federalists:  "  They  have  retired 
into  the  Judiciary  as  a  stronghold.  .  .  .  There  the 
remains  of  Federalism  are  to  be  preserved  and  fed  from 
the  Treasury,  and  from  that  battery  all  the  works  of 
republicanism  are  to  be  beaten  down  and  destroyed."  l 

1 1  Henry  Adams'  History  of  the  United  States,  237. 


John  Marshall  Memorial.  1G6 

Again,  in  1807,  he  said:  "And  it  is  unfortunate  that 
Federalism  is  still  predominant  in  our  judiciary  depart 
ment,  which  is  consequently  in  opposition  to  the  legisla 
tive  and  executive  branches,  and  is  able  to  baffle  their 
measures  often." 

But,  over  and  above  these  causes,  there  was  another 
reason  why  political  animosity  was  manifested  against 
Marshall,  and  that  reason  was  his  authorship  of  the  "  Life 
of  Washington."  It  was  impossible  to  write  this  Life 
without  discussing  the  causes  that  led,  during  Washing 
ton's  administration,  to  the  formation  of  political  parties 
and  divided  the  people  into  Federalists  and  Democrats. 
It  was  also  impossible  for  a  personal  friend  and  political 
sympathizer  to  write  an  account  of  Washington's  admin 
istration  without  reflecting  on  the  conduct  of  those  mem 
bers  of  the  Democratic  party  who  practically  constituted 
the  opposition.  And  it  was  equally  impossible  that  his 
tory  could  be  written  from  such  a  standpoint  without 
giving  great  offense  to  leading  Democrats.  Jefferson 
spoke  of  the  work  as  "the  five-volumed  libel;  """the 
party  diatribe  of  Marshall."  Nor  did  Jefferson  stop 
here.  His  hostility  to  Marshall  antedated  the  latter's 
appointment  to  the  bench.  So  early  as  1795  he  speaks  of 
Marshall's  "profound  hypocrisy."  During  Marshall's 
judicial  career  Jefferson  used  language  which  seems  to 
question  his  honesty.  In  1810  he  speaks  of  "the  raven-  \ 
ous  hatred  which  Marshall  bears  to  the  government  of 
his  country,"  and  "the  cunning  and  sophistry  within 
which  he  is  able  to  enshroud  himself."  Jefferson  also 
says:  "His  [Marshall's]  twistifications  in  the  case  of 
Marbury,  in  that  of  Burr,  and  the  late  Yazoo  case  shew 
how  dexterously  he  can  reconcile  law  to  his  personal 


167          New  Hampshire— Oration  by  Jeremiafy  Smith. 

biases.  .  .  ."*  In  a  letter  to  Gallatin,  he  speaks  of 
the  "gloomy  malignity"  of  Marshall's  mind.2  A  letter 
to  William  B.  Giles,  in  reference  to  the  Burr  case,  con 
tains  more  specific  complaints.  In  that  letter  Jefferson 
alludes  to  "  the  tricks  of  the  judges  to  force  trials  before 
it  is  possible  to  collect  the  evidence.  .  .  ."  He  also 
says:  "The  presiding  judge  meant  only  to  throw  dust  in 
the  eyes  of  his  audience."  And  he  sarcastically  adds  that 
"all  the  principles  of  law  are  to  be  perverted  which 
would  bear  on  the  favorite  offenders  who  endeavor  to 
overrun  this  odious  Republic."8 

The  Democratic  partisans  did  not  content  themselves 
with  growling.  Some  of  them  went  so  far  as  to  propose 
measures  looking  towards  the  removal  of  objectionable 
judges  and  the  curtailment  of  the  power  of  the  court. 
The  remedy  first  suggested  was  impeachment;  and  some 
very  broad  views  were  advanced  as  to  what  would  consti 
tute  sufficient  grounds  for  removal  in  such  a  proceeding. 
At  the  time  of  the  trial  of  Judge  Chase,  Giles  of  Virginia, 
one  of  the  administration  leaders  in  the  Senate,  contended 
that  a  judge  might  be  removed  on  impeachment,  "though 
guilty  of  no  crime,  for  mere  error  in  judgment,  or  because 
he  differed  in  political  opinion  from  the  President  or  from 
Congress." 4  But  the  acquittal  of  Judge  Chase  induced  a 
general  belief  that  impeachment  was  not  an  efficient 
remedy  to  rid  the  country  of  an  unpopular  judge.  There 
after,  though  impeachment  was  occasionally  threatened,5 

1  Ford's  Edition  of  the  Writings  of  Thomas  Jefferson,  vol.  ix,  41; 
x,  247;  ix,  527;  vii,  38;  ix,  275,  276. 

2 1  Henry  Adams'  History  of  the  United  States,  194 

3  Forman's  Life  and  Writings  of  Jefferson,  110. 

<  Life  of  William  Plumer,  274,  320,  321. 

5  Life  of  William  Plumer,  325;  3  Henry  Adams'  History  of  the 
United  States,  340,  466,  470;  4  Ibid.,  155,  156. 


John  Marshall  Memorial.  168 

the  main  efforts  of  the  opponents  of  the  court  were  di 
rected  towards  other  methods  of  attack.     Soon  after  the 
Burr  trial,  in  1807-1808,  motions  were  made   in  each 
branch  of  Congress  to  amend  the. Constitution,  so  that  all 
judges  of  the  United  States  should  hold  office  for  a  term 
of  years,  and  should  be  removed  by  the  President  on 
address  by  two  thirds  of  both  Houses.    This  proposition, 
though  not  successful  in  Congress,  was  supported  by  the 
action  taken  in  the  Legislatures  of  Pennsylvania  and  Ver 
mont  ;  as  well  as  by  the  action  of  the  House  of  Delegates 
in  Virginia  and  of  one  branch  of  the  Legislature  of  Ten- 
nessee.1    In  1822,  soon  after  the  decision  in  Cohens  v. 
Virginia,  Kichard  M.  Johnson,  of  Kentucky,  proposed  in 
Congress  an  amendment  to  the  United  States  Constitution, 
giving  appellate  jurisdiction  to  the  Senate  in  any  case  to 
which  a  State  was  a  party,  arising  under  the  laws,  treaties, 
etc.,  of  the   United   States.2     In  1830    an   attempt  was 
made  to  repeal  the  twenty-fifth  section  of  the  judiciary 
act,  which  gives  the  Supreme  Court,  in  certain  cases,  ap 
pellate  jurisdiction  in  reference  to  the  State  courts.    The 
proposal  was  defeated ;  but  among  the  minority  were  some 
of  the  leading  supporters  of  the  Jackson  administration. 
In  1831  it  was  proposed  to  change  the  tenure  of  Federal 
judges  from  life   appointments  to  terms  of  years.     Al 
though  the  attempt  failed,  it  had  sixty-one  supporters  in 
the  House.3    Reference  may  also  be  made  here  to  the  re 
ported  disinclination  of  President  Jackson  to  sustain  the 
decree  of  the  United  States  Supreme  Court  as  against  the 
defiance  of  the  State  of  Georgia.     The  conflict  was  inci- 

*4  Henry  Adams'  History  of  the  United  States,  205,  207;   3  Ran 
dall's  Life  of  Jefferson,  247,  note  1. 

2  Simmer's  Life  of  Jackson,  128;  1  Webster's  Private  Correspond 
ence,  320. 

3  Simmer's  Life  of  Jackson,  173. 


169         New  Hampshire—  Oration  by  Jeremiah  Smith. 

dent  to  the  attempt  of  Georgia  to  acquire  the  lands  within 
its  limits  occupied  by  Indian  tribes.  The  President 
undoubtedly  sympathized  strongly  with  the  wishes  of 
Georgia  that  the  Indians  might  be  removed;  and  it  is 
perhaps  to  this  sympathy,  rather  than  to  partisan  preju 
dice  against  Marshall,  that  we  should  attribute  his  re 
puted  unwillingness  to  sustain  the  court.  The  conduct  of 
Georgia  was  certainly  in  flagrant  defiance  of  the  United 
States  Constitution  and  laws.  Certain  persons  were  con 
victed  and  imprisoned  under  a  statute  of  Georgia.  Upon 
a  writ  of  error,  the  United  States  Supreme  Court  held  that 
the  State  statute  was  unconstitutional,  and  ordered  that 
the  men  then  imprisoned  should  be  released.1  Georgia 
did  not  obey;  and  it  was  believed  that  President  Jackson 
would  decline  to  take  any  executive  action  to  enforce  the 
decision  of  the  United  States  court.  The  men  finally  ob 
tained  their  release  by  making  terms  with  the  State  of 
Georgia.  It  was  rumored  that  General  Jackson  said: 
"  John  Marshall  has  made  his  decision.  Now  let  him  en 
force  it."2 

Looked  at  to-day  in  the  calm  light  of  history,  all  the 
complaints  and  movements  against  Marshall  appear  sim 
ply  ridiculous,  and  do  no  hurt  to  his  memory.  If  the 
great  Chief  Justice  had  ever  taken  the  trouble  to  allude 
to  the  occasional  evidences  of  his  unpopularity,  he  might 
well  have  expressed  himself  in  the  words  which  Lord 
Mansfield  used  when  laboring  under  the  load  of  popular 
displeasure:  "Ego  hoc  animo  semper  fui  ut  invidiammr- 
tutepartam^  gloriam,  non  invidiam,  putarem" 

1  Worcester  v.  State  of  Georgia,  6  Peters,  515. 

2 1  Von  Hoist,  Constitutional  History  of  the  United  States,  454-458; 
Sumner's  Life  of  Jackson,  182;  2  Kennedy's  Life  of  Wirt.  370-373; 
1  Bryce,  American  Commonwealth,  262;  Constitutional  History  of 
the  United  States  as  seen  in  the  Development  of  American  Law,  102. 


John  Marshall  Memorial.  170 

But  we  must  do  justice,  not  only  to  Marshall,  but  also 
to  his  opponents.  Absurdly  mistaken  though  these  men 
were,  yet  they  were  neither  unpatriotic  nor  dishonest. 
Their  attacks  simply  illustrate  the  extent  to  which  polit 
ical  partisanship  can  cloud  the  reason  and  overturn  the 
judgment  of  men  of  good  intentions  and  strong  intellect. 
Horace  Mann,  writing  to  a  distinguished  subject  of  Queen 
Victoria,  said,  "  Party  allegiance  here  has  much  the  effect 
of  loyalty  with  you.  It  has  the  power  to  change  the  nat 
ure  of  right  and  wrong."  This  is  not  the  proper  place  to 
discuss  the  relative  merits  of  the  Federal  and  Democratic 
parties  in  the  early  days.  Most  candid  students  of  history 
will  probably  say  that  neither  party  was. wholly  right 
nor  wholly  wrong.  "  Venomous  "  is  hardly  too  strong  a 
word  to  describe  the  political  feeling  in  those  times.  The 
leaders  on  each  side  were  absolutely  unable  to  do  justice 
to  the  motives  of  their  opponents.  It  would  not  be  diffi 
cult  to  cull  from  the  writings  of  leading  Federalists  criti 
cisms  of  Jefferson  fully  as  offensive  as  any  of  the  expres 
sions  which  Jefferson  used  about  Marshall.1  Indeed, 
Marshall  himself,  in  a  letter  to  Hamilton,  expressed  a 
very  unfavorable  opinion  of  Jefferson's  morals.2  True  it 
is,  that  the  leaders  on  both  sides  need  to  have  the  mantle 
of  charity  thrown  over  the  vehemence  of  their  language. 
When  a  man,  acting  up  to  his  lights,  gives  utterance  to 
error,  his  sincerity  does  not  verify  his  statement,  but  it 
does  save  the  character  of  the  speaker. 

One  is  glad  to  turn  away  from  the  party  animosities, 

1  See,  for  instance,  the  views  expressed  by  Timothy  Pickering;  4 
Henry  Adams'  History  of  the  United  States,  347,  359;  Lodge's  Studies 
in  History,  205,  208. 

2  Vol.  vi,  Hamilton's  Works,  502. 


171          New  Hampshire— Oration  by  Jeremiah  Smith. 

and  contemplate  the  personality  and  the  domestic  life  of 
the  Chief  Justice. 

The  physical  feature  in  Marshall  which  most  impressed 
an  observer  was  the  brightness  of  his  eyes.  He  could 
"gaze  long  and  intently  without  winking."  He  was  wont 
to  listen  to  arguments  with  the  most  profound  attention. 
In  those  days  there  was  no  time  limit  imposed  upon  coun 
sel,  and  occasionally  a  man  would  speak,  not  merely  for 
hours,  but  for  a  whole  day,  or  even  longer.  In  a  case 
from  the  district  of  .New  Hampshire,  argued  in  1795  at 
Philadelphia,  five  counsel  occupied  ten  days.1  But  the 
steacty  and  persistent  gaze  of  the  Chief  Justice  had  some 
times  the  effect  of  shortening  an  argument.  One  coun 
selor,  who  had  probably  cut  his  speech  short,  said  that 
no  man  could  stand  the  steady  look  of  that  clear  eye  for 
more  than  two  hours. 

Like  most  truly  great  men,  Marshall  had  a  hearty 
laugh  and  a  strong  sense  of  humor.  He  was  one  of  the 
most  companionable  of  mortals.  In  a  book  published  in 
Virginia  not  many  years  since,  there  is  a  delightful  de 
scription  of  Marshall,  when  in  the  height  of  his  reputa 
tion,  participating  in  the  recreations  of  the  Barbecue 
Club.  This  was  an  association  composed  of  the  promi 
nent  men  of  Kichmond,  and  one  of  its  favorite  amuse 
ments  consisted  in  pitching  quoits.  On  one  occasion, 
after  Marshall's  quoit  encircled  the  stake  or  "  meg,"  an 
other  quoit  thrown  by  a  clerical  gentleman  alighted  on 
top  of  the  first  one.  Thereupon  the  club,  as  a  mock 
court,  listened  to  jocose  arguments  on  the  solemn  ques 
tion:  "Who  is  winner  when  two  adversary  quoits  are 
on  the  meg  at  the  same  time?"  Marshall  cited,  in  his 
own  behalf,  the  maxim,  Cujus  est  solum  ejus  est  usque  ad 

1 3  Dallas,  54. 


John  Marshall  Memorial.  172 

ccdum.  He  argued  that,  as  he  was  the  first  occupant,  his 
right  extended  from  the  ground  up  to  the  vault  of  heaven, 
and  that  no  one  had  a  right  to  become  a  squatter  on  his 
back.  The  club  finally  decided  that  it  was  a  drawn 
throw  between  the  Chief  Justice  and  Parson  Blair.1 

According  to  all  accounts,  the  domestic  life  of  Mar 
shall  was  charming.  He  did  not  wait  to  become  a 
wealthy  man  before  contracting  matrimony.  He  was 
married  about  two  years  after  he  began  to  practice  law, 
and  has  been  heard  to  say  that,  after  paying  the  wedding 
fee  to  the  parson,  he  had  but  one  solitary  guinea  left. 
Mrs.  Marshall  soon  became  an  invalid,  but  her  infirmi 
ties  "  only  seemed  to  increase  his  care  and  tenderness." 2 
Miss  Martineau  tells  us  that  the  Chief  Justice  believed 
that  women  were  intellectually  the  equals  of  men,  and 
that  he  had  a  deep  sense  of  their  social  injuries.  To  his 
wife's  memory  he  paid  an  unusual  honor.  It  is  ex 
tremely  common  to  read  upon  the  gravestone  of  a 
woman  the  statement  that  the  deceased  was  the  wife  of 
a  certain  man.  But  Marshall  was  probably  the  first  man 
to  direct  that  the  wife's  name  should  be  recorded  upon 
the  tombstone  of  the  husband.  The  inscription,  which, 
with  the  exception  of  the  last  date,  he  prepared  before 
his  death,  and  which  may  still  be  seen  on  his  gravestone 
in  the  Shockhoe  Hill  cemetery  in  Kichmond,  reads  thus: 

"JOHN  MARSHALL, 

son  of  Thomas  and  Mary  Marshall, 

was  born  on  the  24th  of  September,  1755; 

intermarried  with  Mary  Willis  Ambler,  the  3d  of  January,  1783; 
departed  this  life  the  6th  of  July,  1835." 

1  "The  Two  Parsons,"  by  George  Wythe  Munford,  Richmond,  1884: 
326-361. 

2  The  Richmond  News  Illustrated  Saturday  Magazine,  September 
22,  1900. 


173  New  Hampshire  — Address  of  Edgar  Aldrich. 

When,  after  thirty-four  years  of  judicial  service,  Chief 
Justice  Marshall  died  in  the  eightieth  year  of  his  age, 
the  tributes  to  his  memory  were  numerous  and  weighty. 
In  some  instances,  after  the  sound  of  the  funeral  eulogies 
has  died  away,  the  waters  close  over  the  memory  of  a 
deceased  person  without  leaving  a  single  ripple  on  the 
surface.  Not  so  in  the  case  of  Marshall.  His  work  has 
stood  the  test  of  time.  Year  by  year  his  reputation  has 
strengthened  and  deepened.  Nor  has  that  reputation 
been  confined  to  this  country,  nor  even  to  this  hemi 
sphere.  A  few  years  since,  when  the  Chief  Justice  of 
South  Australia  was  visiting  the  United  States,  an  Amer 
ican  lawyer  called  his  attention  to  a  portrait  of  Marshall, 
saying:  "We  consider  him  the  greatest  judge  of  our 
country."  "You  might  well  say  the  greatest  judge  of 
any  country,"  was  the  reply  of  the  distinguished  visitor 
from  the  Antipodes.  In  recent  times  two  statues  of  the 
Chief  Justice  have  been  erected,  one  at  Richmond  and 
the  other  at  Washington.  But  a  still  more  enduring 
and  imperishable  memorial  is  contained  in  the  pages  of 
Cranch  and  Wheaton. 

Edgar  Aldrich  thus  introduced  his  elaborate  address  on 
"John  Marshall  as  a  Soldier:" 

"  As  the  aloe  is  said  to  flower  only  once  in  a  hundred 
years,  so  it  seems  to  be  but  once  in  a  thousand  years  that 
nature  blossoms  into  this  unrivaled  product,  and  produces 
such  a  man  as  we  have  here."  Such  was  the  poetic 
simile,  employed  by  a  noted  English  statesman,  to  illus 
trate  the  boundless  genius  of  Homer,  and  we  may  well 
apply  it  to  the  stupendous  intellectual  force  of  John 
Marshall.  Thomas  Carlyle  has  said:  "One  comfort  is 
that  great  men  taken  up  in  any  way  are  profitable  com- 


John  Marshall  Memorial.  174 

pany.  We  cannot  look,  however  imperfectly,  upon  a 
great  man  without  gaining  something  by  it.  He  is  the 
living  fountain  of  life,  which  it  is  pleasant  to  be  near.  .  .  . 
On  any  terms  whatsoever  you  will  not  grudge  to  wander 
in  the  neighborhood  for  a  while."  And  so  it  is  with  the 
memory  and  life  of  Marshall. 

I  am  to  speak  of  the  early  military  life  of  this  man  of 
vast  proportions.  .  .  . 

After  reviewing  Marshall's  career  as  a  soldier  of  the 
Revolution  the  speaker  said: 

After  nearly  six  years'  service,  from  May,  1775,  to 
January,  1781,  with  occasional  interruptions  when  hos 
tilities  were  not  active,  and  with  the  repulse  and  dis 
comfiture  of  Arnold,  John  Marshall  ended  his  military 
service,  except  later  as  General  of  Militia,  and  entered  at 
once  upon  that  great  career  which  was  to  mean  so  much 
for  jurisprudence,  and  for  the  scope  and  essential  force 
of  the  Federal  Constitution,  of  which  others  are  to  speak. 

Military  service  is  not  inglorious.  No  one  will  claim 
that  every  soldier  possesses  the  qualities  of  a  great  judge, 
but  one  may  possess  the  qualities  of  greatness,  and  do  his 
duty  to  his  country  as  a  soldier  in  the  days  of  its  peril. 

Including  Mr.  Justice  Harlan  and  Mr.  Justice  White, 
now  in  the  Supreme  Court,  thirteen  of  the  line  of  justices 
of  that  court  saw  military  service.  They  are  Harlan, 
White,  Lamar,  Matthews,  Woods,  Campbell,  Thomas, 
Todd,  Brockholst  Livingston,  Alfred  Moore,  Bushrod 
Washington,  Thomas  Johnson,  Eobert  Hanson  Harrison, 
and  John  Marshall. 

Of  the  Presidents,  thirteen  of  the  twenty-four  have 
served  their  country  in  war.  They  are  the  present  execu 
tive,  William  McKinley,  Benjamin  Harrison,  Chester  A. 


175    New  Hampshire  —  Address  of  Robert  M.  Wallace. 

Arthur,  who  was  an  officer  in  the  militia  before  the  Civil 
War,  and  during  the  Civil  War  Adjutant-General  and 
Quarter  master- General  of  New  York,  Garfield,  Hayes, 
Grant,  Lincoln,  Pierce,  Taylor,  William  Henry  Harrison, 
Jackson,  Monroe,  and  Washington. 

Marshall,  a  captain  of  infantry,  was  in  after  life  called  to 
preside  for  many  years  in  the  highest  court  of  the  repub 
lic,  where  his  genius  was  to  develop  the  underlying  prin 
ciples  of  the  Federal  Constitution  and  erect  for  its  scope 
the  broad  and  enduring  structure  of  constitutional  law, 
which  has  held  and  guided  this  nation  in  the  great  crises 
of  the  past,  and  which  shall  hold  and  guide  this  nation, 
in  her  future  career  of  increasing  enlightenment  and  plen 
itude  at  home,  and  in  her  new  and  broader  sphere  of 
usefulness  and  power  among  the  nations  of  the  world. 

Judge  Robert  M.  Wallace,  in  the  course  of  his  address 
on  "  The  Associates  of  John  Marshall,"  said  in  part : 

January  31,  1801,  John  Marshall  was  appointed  Chief 
Justice  of  the  United  States  Supreme  Court,  taking  his  seat 
February  4,  1801.  Among  the  five  associates  whom  he 
found  on  the  bench  was  Bushrod  Washington,  who  served 
with  him  twenty-eight  years.  During  Marshall's  long 
service  of  thirty-four  years  on  the  bench,  ten  other  asso 
ciates  were  at  different  times  appointed,  who  served  with 
him  for  longer  or  shorter  periods.  Among  these  last  was 
Joseph  Story  of  Massachusetts,  who  for  twenty-four  years 
was  an  associate  of  Marshall.  Aside  from  Washington 
and  Story,  ten  of  his  remaining  associates  had  been  mem 
bers  of  the  highest  court  in  their  respective  States  before 
their  appointment,  besides  holding  many  other  important 
offices.  Of  the  other  three,  one  had  been  Secretary  of  the 
Treasury,  another  a  United  States  Senator,  and  a  third  a 


John  Marshall  Memorial.  176 

member  of  Congress.  Many  of  them  had  been  members 
of  constitutional  conventions.  They  were  men  of  great 
learning  and  of  the  highest  character,  and  added  strength 
to  the  bench.  .  .  . 

The  court  at  this  time  was  surrounded  by  a  most  dis 
tinguished  bar.  The  period  of  Marshall's  Chief  Justice 
ship  might  truthfully  be  called  the  "  Golden  Age  of  the 
American  Bar."  The  highest  talent  and  ambition  were 
directed  to  the  legal  profession  in  preference  to  all  other, 
as  affording  the  greatest  field  for  distinction  and  honor. 
At  that  time,  great  industrial  and  business  enterprises 
did  not,  as  they  do  to-day,  present  to  the  eyes  of  the  com 
munity  equal  fields  for  success  and  preferment  with  the 
bar.  There  was  Jeremiah  Mason,  of  whom  Rufus  Choate 
said,  "  As  a  jurist  he  would  have  filled  the  seat  of  Mar 
shall  as  Marshall  filled  it,"  and  that  great  constitutional 
lawyer,  Daniel  Webster,  both  sons  of  New  Hampshire, 
Samuel  Dexter  of  Massachusetts,  and  William  Pinkney 
of  Maryland,  whom  Judge  Story  regarded  as  unequaled 
advocates,  Thomas  A.  Emmet  of  New  York,  who  had 
the  real  Irish  eloquence,  the  magnetic  Henry  Clay,  the 
brilliant  William  Wirt,  that  great  lawyer,  Horace  Bin- 
ney,  and  many  others  equally  illustrious.  Their  argu 
ments  sometimes  lasted  for  days.  It  was  an  age  of  great 
argument.  Their  learning,  their  labors,  and  their  elo 
quence  enlightened  and  aided  the  court.  The  opinions 
of  the  court  may  be  said  in  some  degree  to  reflect  the 
views  of  these  great  lawyers.  Especially  is  this  true  in 
regard  to  Webster,  whose  great  learning  on  constitutional 
questions  expressed  to  the  court  in  his  impressive  man 
ner,  as  for  instance  in  the  Dartmouth  College  case,  may 
be  truly  said,  without  any  disparagement  to  the  court,  to 


177    New  Hampshire— Address  of  Robert  M.  Wallace. 

be  reflected  in  those  great  constitutional  judgments  which 
laid  the  foundation  of  our  national  jurisprudence. 

Such  were  the  associates  of  Marshall  on  the  bench,  and 
such  was  the  bar  of  that  day.  It  was  the  duty  of  the 
court  to  develop  the  judicial  system  of  the  National  Gov 
ernment  under  the  Constitution.  The  court,  with  Chief 
Justice  Marshall  at  its  head,  was  peculiarly  fitted  for  this 
great  and  important  task.  It  is  fortunate  that  this  work 
was  committed  to  those  who  had  the  true  conception  of 
the  functions  and  powers  which  the  Constitution  gave 
to  the  National  Government,  and  who  had  the  firmness 
faithfully  to  adhere  to  that  conception.  It  is  easy  to  see 
that  had  their  ideas  on  this  subject  been  less  correct,  or 
had  they  faltered  in  the  performance  of  this  great  task, 
the  whole  scheme  of  our  Government  might  have  been 
wrecked  in  its  very  inception,  or  its  powers  might  have 
been  so  limited  and  circumscribed  by  an  erroneous  inter 
pretation  of  the  Constitution  that  it  would  only  have 
been  a  question  of  time  when  it  would  have  succumbed 
to  the  encroachment  of  the  States. 

The  judges  who,  without  precedent  or  landmark  to 
guide  them,  settled  these  great  questions,  are  gone. 
Judges  of  later  generations  have  come  and  gone  since 
then;  but  the  court  still  remains,  a  monument  to  the 
sagacity  of  the  framers  of  the  Constitution  and  of  the 
wisdom  of  its  early  expounders,  and  a  bulwark  of  the  lib 
erty  of  the  people  and  of  the  safety  and  stability  of  the 
Nation.  What  this  court  has  done  for  us  in  the  past,  in  the 
course  of  our  National  development  unparalleled  in  the 
world's  history,  we  confidently  look  for  it  to  do  for  us  in 
the  future,  as  we  continue  in  what  we  hope  and  believe 
will  be  a  still  grander  and  more  beneficent  National  career. 
VOL.  1  —  12 


John  Marshall  Memorial.  178 

Exercises  at  the  Annual  Dinner  February  4,  1901. 

In  introducing  the  exercises  at  the  dinner,  Frank  S. 
Streeter  thus  referred  to  a  scene  in  the  argument  of  the 
Dartmouth  College  case  in  the  Supreme  Court  of  the 
United  States:  There  is  one  historic  scene  in  the  life  of 
this  great  Judge  to  which  I  wish  to  refer,  because  our 
own  college,  our  own  Webster,  and  our  own  State  were 
the  other  dominant  figures  in  the  picture.  It  was  en 
acted  in  the  old  Supreme  Court  room  in  the  basement  of 
the  capitol.  Chief  Justice  Marshall  presided.  On  either 
hand  were  Justices  Bushrod  Washington,  Johnston,  Liv 
ingston,  Todd,  Duvall,  and  Story.  Before  these  judges 
stood  Webster  eloquently  pleading  for  the  reversal  of 
the  judgment  of  the  Supreme  Court  of  NVv  Hampshire, 
which  had  held  that,  notwithstanding  the  charter,  the 
State  had  the  power  to  change  the  method  of  its  govern 
ment,  and,  to  a  certain  extent,  divert  the  use  of  its  funds. 
The  State  and  the  College  were  in  hostile  attitudes  and 
the  most  eminent  alumnus  was  pleading  before  the  great 
est  Chief  Justice  who  ever  sat  on  the  Supreme  bench,  for 
the  protection  of  his  alma  mater  against  the  practical 
repeal  of  her  charter.  We  can  almost  see  the  orator 
standing,  Jove-like,  before  the  court  as  he  says: 

"  Sir,  you  may  destroy  this  little  institution ;  it  is  weak ; 
it  is  in  your  hands  !  I  know  it  is  one  of  the  lesser  lights 
in  the  literary  horizon  of  our  country.  You  may  put  it 
out.  But  if  you  do  so,  you  must  carry  through  your  work. 
You  must  extinguish  one  after  another  all  those  great 
lights  of  science  which  for  more  than  a  century  have 
thrown  their  radiance  over  our  land  ! 

"  It  is,  sir,  as  I  have  said,  a  small  college,  and  yet  there 
are  those  who  love  it  — " 


179         New  Hampshire  — Exercises  at  Annual  Dinner. 

We  can  almost  see  him,  overcome  with  his  own  emo 
tion,  his  lips  quivering,  his  eyes  filled  with  tears,  his  voice 
choking,  the  orator  struggling  to  gain  mastery  over  him 
self.  We  can  almost  see  the  great  Chief  Justice,  with  his 
tall,  gaunt  figure,  bending  over  as  if  to  catch  the  slightest 
whisper  of  the  pleader,  the  deep  furrows  of  his  cheek 
expanded  with  emotion  and  his  eyes  suffused  with  tears. 

It  was  one  of  the  most  dramatic  incidents  in  the  whole 
history  of  American  jurisprudence.  It  matters  not  that 
the  judgment  then  rendered  has  been  worn  away  and  has 
crumbled  under  the  touch  of  advancing  legal  science;  it 
matters  not  that  the  State  and  the  College,  then  in  hostile 
attitudes,  have  learned  to  lean  on  and  each  appreciate  the 
other,  so  that  now  there  is  diffused  among  the  great  mass 
of  our  people  a  feeling  of  affection  for  and  pride  in  the 
old  college,  and  the  people  are  coming  to  feel  that  this  is 
their  college,  that  its  romantic  history  and  its  great  char 
itable  work  of  providing  a  liberal  education  for  poor  boys 
is  truly  a  part  of  the  general  heritage  of  the  State  in  which 
every  citizen  has  just  pride  and  has  just  share.  This 
dramatic  scene  should  not  be  left  to  the  tender  mercies 
of  tradition,  but  preserved  on  canvas  by  the  skilled  hands 
of  a  great  artist. 

The  four  parties  who  bear  a  dominant  part  in  this  his 
torical  episode  are  John  Marshall,  Daniel  Webster,  Dart 
mouth  College,  and  the  State  of  New  Hampshire.  Mar 
shall  and  Webster  are  both  gone,  but  the  State  and  Col 
lege  still  live,  and  may  they  live  long  and  prosperously. 

Governor  Jordan,  responding  for  "  The  State,"  said  in 
part: 

As  I  sat  and  listened  to  Judge  Smith,  I  thought  we  had 
the  distinction  which  no  other  bar  in  the  United  States 


John  Marshall  Memorial.  180 

could  boast  of.  We  had  here  a  man  addressing  us,  a  dis 
tinguished  gentleman,  a  distinguished  jurist,  a  professor 
of  the  law,  a  professor  in  himself.  His  story  was  of 
the  great  John  Marshall,  whose  memory  we  here  cele 
brate  ;  and  he  was  at  the  same  time  the  son  of  the  great 
Chief  Justice  of  New  Hampshire,  Jeremiah  Smith,  who 
was  born  only  four  years  after  John  Marshall  was  born, 
was  in  the  army  as  was  John  Marshall,  and  afterwards, 
like  him,  was  holding  courts  and  shaping  the  jurispru 
dence  of  the  country.  His  son  is  addressing  us  here  to-day, 
and  he  is  only  two  years  older  than  myself,  and  he  and  I 
are  not  so  old  as  I  hope  we  both  shall  be. 

When  the  Constitution  —  the  Federal  Constitution  — 
was  adopted  in  our  own  State,  our  Jeremiah  Smith,  who 
did  so  much  for  New  Hampshire  and  for  the  jurispru 
dence  of  New  Hampshire,  was  twenty-nine  years  old;  in 
1809  he  was  Governor  of  New  Hampshire,  but  I  am  not 
here  to  trace  the  career  of  Judge  Smith  the  elder,  or 
Judge  Jeremiah  Smith  the  younger.  You  all  know  it, 
and  are  conversant  with  their  work  in  New  Hampshire, 
and  I  say  we  have  a  distinction  and  honor  which  no  other 
bar  association  of  the  forty-five  States  and  our  Territories 
can  boast  of. 

Marshall,  with  our  own  immortal  Webster,  it  seems  to 
me,  did  more  than  all  others  to  teach  our  people  the  length, 
breadth,  height,  and  depth;  the  beneficence,  the  richness, 
the  fullness,  the  complete  adequacy  for  all  time,  of  the 
Federal  Constitution.  The  one  for  thirty-four  years 
spoke  from  his  exalted  place  on  the  bench,  and  is  still 
speaking  through  his  strong  opinions, —  while  the  other 
in  House  and  Senate  and  elsewhere  and  almost  every 
where  unfolded  and  made  plain  to  the  plainest  under 
standing  the  wealth  and  utility  of  its  wise  provisions, 


181         New  Hampshire — Exercises  at  Annual  Dinner. 

and  the  necessity  of  adhering  to  them  in  storm  and  in 
sunshine.  Each  in  his  own  way  grandly  performed  his 
duty. 

President  Tucker's  response  to  the  toast,  "  Dartmouth 
College,"  gave  an  account  of  the  origin  of  that  case, 
stating  some  facts  of  interest  not  generally  known.  He 
said:  The  same  year  in  which  Chief  Justice  Marshall 
took  his  seat,  Mr.  Webster  graduated  from  Dartmouth ; 
seventeen  years  later,  the  case  of  the  Trustees  of  Dart 
mouth  v.  Woodward  was  argued  before  the  Supreme 
Court  of  the  United  States,  and  the  decision  was  ren 
dered  in  the  following  February.  The  college  had  then 
been  in  existence  fifty  years;  the  Supreme  Court  thirty 
years.  I  recall  these  dates  that  you  may  see  how  defi 
nitely  we  are  carried  back  into  the  formative  period  of 
American  jurisprudence  —  certainly  into  the  formative 
period  of  constitutional  law.  If  I  venture  to  tell  in  brief 
words  in  your  presence  the  story  of  this  case,  you  will  un 
derstand  that  it  is  not  with  the  presumption  of  attempting 
to  add  anything  to  your  legal  knowledge  or  even  to  re 
fresh  it,  but  simply  for  the  purpose  of  bringing  out  cer 
tain  facts  with  which  possibly  I  may  be  more  familiar 
than  some  of  you.  How  did  it  happen  that  this  college 
in  the  wilderness  found  its  way  into  the  Supreme  Court 
of  the  United  States,  and,  through  the  decision  there  ren 
dered,  into  all  the  departments  of  public  life  —  legal,  polit- 
ipal,  and  economic?  How  did  it  happen  that  this  college 
of  the  province  of  New  Hampshire,  which  drew  its  exist 
ence  from  the  British  crown,  came  to  owe  its  continued 
existence  to  the  illustrious  Virginian  whose  honor  we  cele 
brate  here  to-night?  If  I  can  answer  these  questions 
properly,  I  can  show  the  proper  relation  of  the  Dartmouth 


John  Marshall  Memorial.  182 

College  case  to  John  Marshall.  The  Dartmouth  College 
case  grew  out  of  the  peculiar,  the  unique,  origin  of  Dart 
mouth  College.  Unlike  most  of  the  historic  colleges,  Dart 
mouth  originated  in  the  consecration,  the  inexorable  faith, 
the  zeal  and  the  courage  of  one  man,  Eleazar  Wheelock. 
Harvard  grew  out  of  the  public  sentiment  of  the  Massa 
chusetts  colony.  The  name  which  it  bears  represents  a 
most  gracious  and  pleasing  personage,  according  to  tra 
dition,  but  the  name  of  John  Harvard  lives  chiefly  as  the 
outcome  of  tradition.  Yale  College  grew  out  of  the  pub 
lic  sentiment  of  the  churches  of  the  New  Haven  colony. 
Certain  ministers  came  together  and  gave  out  of  their 
scanty  libraries  enough  books  to  start  a  college  library, 
and  thus  founded  Yale  College, —  a  fact,  I  suppose,  which 
still  gives  them  their  lien  on  the  management  of  the  col 
lege.  Dartmouth  College  was  an  importation.  It  came 
into  the  State  in  the  person  of  Eleazar  Wheelock.  He 
was  the  embodiment  of  it  in  idea,  in  purpose,  and  in 
fact.  I  do  not  overlook  the  co-operation  of  Governor 
Wentworth,  without  which  all  his  efforts  would  have 
been  futile.  But  it  is  to  Wheelock  that  it  owed  its  life. 
He  brought  his  family  with  him  to  share  the  hardships 
of  the  wilderness.  He  brought  with  him  as  much  of  his 
own  school  as  he  could  transfer.  He  sent  one  of  his  pupils 
to  England  to  raise  fifty  thousand  dollars  for  enlargement, 
and  the  first  graduates  of  Dartmouth  were  men  who  had 
entered  Yale,  drawn  thither  by  Eleazar  Wheelock. 

The  charter  gave  Eleazar  Wheelock,  as  the  founder 
and  first  president  of  the  college,  the  right  to  name  a 
successor.  After  ten  years  of  service  he  died,  and  in  his 
will  he  named  his  son  as  his  successor,  John  Wheelock, 
lieutenant-colonel  in  the  Continental  army.  He  took 
the  office  reluctantly.  There  were  various  reasons,  which 


183         New  Hampshire  —  Exercises  at  Annual  Dinner. 

seem  to  me  sufficient  reasons,  why  he  should  not  have 
accepted  it,  but  in  deference  to  his  father's  wishes  he 
took  the  office.  He  was  a  mnn  somewhat  stern  in 
bearing,  given  to  many  of  the  formalities  of  his  office, 
but  a  man  of  fidelity  and  a  man  of  enterprise.  As  his 
successor  after  a  long  time,  I  speak  in  profound  respect 
of  him,  for  in  his  time  the  college  turned  out  som j  of  the 
greatest  men  it  has  produced.  But  in  due  time  there  was 
friction  between  the  president  and  trustees.  It  has  been 
said  by  some  historians  that  the  original  ground  of  the  con 
troversy  was  religious;  that  was  a  mistake,  so  far  as  the 
original  Board  is  concerned.  All  the  men  of  this  Board 
were  of  the  same  faith.  It  has  been  said  that  the  ground 
of  this  controversy  was  political,  bub  all  the  men  were 
Federalists,with  the  exception  of  Judge  Niles,  who  was  a 
pronounced  admirer  of  Jefferson.  The  controversy  in  this 
case  grew  out  of  the  fact  that  the  instrument  which  was 
to  guard  and  secure  the  liberty  of  the  college  had  in  it  the 
element  of  disruption.  It  allowed  the  President  of  the 
college  to  name  his  successor.  The  popular  understanding 
is, —  I  do  not  think  that  it  is  your  understanding,  but  I 
wish  to  correct  it,  however, —  the  popular  understanding 
is  that  the  State  took  the  initiative  in  the  Dartmouth  Col 
lege  case.  The  State  did  not  take  the  moral  initiative  in  the 
Dartmouth  College  case.  It  did  not  of  its  own  motion 
directly  invade  the  rights  of  the  college.  As  the  con 
troversy  between  the  President  and  the  Trustees  grew 
apace,  President  Wheelock  memorialized  the  Legislature 
to  appoint  a  committee  of  visitation  and  asked  that  they 
be  empowered  to  investigate  the  affairs  of  the  college, 
using  these  strong  words  in  asking  for  this  committee 
of  visitation  that  they  should  be  "empowered  to  make 
organic  improvements  in  the  college."  That  appeal  went 


John  Marshall  Memorial.  184 

to  the  Legislature.  In  answer  to  that  appeal  from  the 
college,  the  Legislature  appointed  a  committee  of  visita 
tion.  The  committee  in  its  work  was  at  first  acceptable 
to  both  the  president  and  trustees.  Later  the  trustees 
deposed  President  Wheelock  from  his  office.  It  was  not 
until  these  events  transpired  that  Governor  Plumer,  hav 
ing  advised  with  Mr.  Jefferson,  determined  to  secure  the 
interference  of  the  State  in  the  affairs  of  the  college.  An 
act  was  passed  by  the  Legislature  to  amend  the  charter 
of  Dartmouth  College,  and  to  enlarge  and  improve  the 
Corporation,  changing  the  corporate  namo  to  that  of 
Dartmouth  University.  The  trustees  at  once  tested  the 
constitutionality  of  the  act  before  the  Supreme  Court  of 
the  State. 

They  brought  the  case  against  "Wood ward,  formerly  the 
treasurer  of  the  college,  now  the  treasurer  of  the  univer 
sity,  and  in  this  form  the  case  went  to  the  State  court  and 
from  the  State  court  to  the  Supreme  Court  of  the  United 
States.  I  wish  to  repeat  in  this  presence  the  fact  that 
although  the  State  of  New  Hampshire  instituted  proceed 
ings  affecting  the  charter  of  the  college,  the  moral  initia 
tive  came  from  the  college.  And  from  thence  the  appeal 
was  taken  to  the  Supreme  Court  of  the  United  States. 

One  more  fact,  about  which  you  may,  or  may  not,  agree 
with  me.  Notwithstanding  the  circumstances  which  sur 
rounded  the  case,  and  gave  it,  as  the  toastmaster  has  said, 
its  high  dramatic  character,  it  seems  to  me  that  if  you 
could  have  changed  in  many  ways  the  setting  of  the  case, 
if  you  could  have  changed  the  part  which  many  took  in 
connection  with  it,  still  the  case  would  have  almost  in 
evitably  reached  the  same  conclusion.  I  give  due  credit 
to  the  indefatigable  enterprise  and  wise  diplomacy  of 
President  Brown,  to  the  great  sagacity  of  Jeremiah  Mason 


185         New  Hampshire— Exercises  at  Annual  Dinner. 

and  Jeremiah  Smith,  to  the  logic  and  emotion  of  Mr. 
Webster  in  placing  the  case  before  the  Supreme  Court, 
but  I  am  still  convinced  that  if  you  throw  aside  all  these 
surroundings,  if  you  could  have  given  to  the  college  case 
a  weaker  presentation,  it  would  still  have  received  by  the 
hand  of  John  Marshall,  who  dominated  the  case,  the  same 
decision  which  it  did  receive  at  his  hands;  for  the  time 
had  inevitably  come  when  any  such  case  as  that  must 
call  out  such  an  interpretation  of  the  Constitution  as  was 
given. 

The  question  which  was  uppermost  at  the  outset  was 
that  of  the  public  and  private  character  of  Dartmouth 
College.  It  was  difficult  to  distinguish  between  Moore's 
Charity  school  and  Dartmouth  College.  I  have  never  been 
able  to  determine  exactly  how  it  was  that  the  old  Indian 
school  brought  to  Hanover  by  Eleazar  Wheel ock  passed 
into  Dartmouth  College.  Certain  it  is  that  of  the  funds 
given  for  the  establishment  and  perpetuation  of  an  Indian 
school  not  one  dollar  to-day  remains  in  any  form  for  the 
education  of  Indians.  Dartmouth  College,  out  of  senti 
ment  for  the  past,  always  remembers  such  a  one,  giving 
him  tuition  and  board.  Out  of  all  the  traditions,  however, 
which  have  survived,  nothing  remains  to-day  which  bears 
the  value  of  a  single  dollar.  Therefore  there  must  have 
been  some  confusion  at  that  time  as  to  whether  the  col 
lege  was  a  public  or  a  private  corporation  in  the  eye  of 
the  law.  That,  however,  was  an  immaterial  question.  The 
material  question  soon  became  whether  the  charter  was 
or  was  not  a  contract.  Marshall  evidently  held  such  a 
conception  of  the  Constitution,  that  the  decision  of  this 
question  was  predetermined.  It  seems  probable  that  this 
decision  would  have  been  formulated  however  weak  the 
case  might  have  been  which  brought  it  to  the  attention 


John  Marshall  Memorial.  186 

of  the  Chief  Justice.  When  this  case  was  decided,  it  ac 
corded  with  decisions  which  affected  the  State  of  Mary 
land  as  well  as  the  State  of  New  Hampshire.  It  was  the 
interpretation  it  gave  which  carried  other  States  along 
with  it.  We  had  come  to  the  time  when  men  agreeing 
with  John  Adams  and  his  school  would  have  given  one 
interpretation,  and  when  men  agreeing  with  Thomas 
Jefferson  would  have  given  another. 

John  Marshall  decided  the  Dartmouth  College  case  in 
keeping  with  that  interpretation  of  the  Constitution 
which  from  first  to  last  was  dominant  in  his  mind.  When 
the  case  reached  this  high  issue,  both  the  State  and  the 
college  accepted  it  in  good  faith,  and  yet  each  learned,  I 
think,  a  lesson  from  it.  Certainly  the  college  has  learned 
the  lesson,  that  it  belongs  to  the  State,  and  exists  for  the 
State  in  all  its  higher  interests,  and  the  State  has  learned 
more  and  more  that  it  can  do  no  better  for  itself  than  to 
build  up  education  on  the  broad  basis  which  the  college 
affords  as  preserved  in  its  original  integrity. 

You  will  pardon  me,  gentlemen,  one  word  as  I  close. 
It  is  a  word  I  think  you  will  allow  me  to  say  in  honest 
pride.  It  has  been  the  singular  fortune  of  Dartmouth 
College,  not  only  in  the  personality  of  its  graduates,  but 
in  its  own  corporate  personality,  to  walk  among  the  high 
places  of  men.  Before  it  had  found  a  shelter  for  its  own 
home,  it  had  free  access  to  the  Royal  Chamber  of  Great 
Britain,  and  bore  back  for  its  name  a  name  held  in  equal 
honor  in  the  mother  country  and  in  the  colonies.  After 
the  War  of  the  Revolution,  it  was  introduced  by  a  great 
representative  into  the  Supreme  Court  of  the  United 
States,  where  in  its  own  corporate  personality  it  stood 
unabashed  and  awaited  the  verdict  which  was  to  decide 
its  destiny.  Dartmouth  College  stands  a  debtor  to  men 


187         New  Hampshire  — Exercises  at  Annual  Dinner. 

of  high  distinction  and  to  many  unknown  men,  but 
among  all  men  to  whom  it  owes  a  debt  of  gratitude,  I 
know  of  none  to  whom  it  owes  a  deeper  debt  of  gratitude 
than  to  John  Marshall,  whose  voice  proclaimed  throughout 
the  length  and  breadth  of  the  land  in  unanswerable  terms, 
the  security,  the  freedom,  and  the  enduring  life  of  Dart 
mouth  College. 

Mr.  Charles  H.  Burns,  speaking  of  Marshall  as  "  The 
Chief  Justice,"  in  the  course  of  his  remarks  said : 

The  chief  wealth  of  civilized  nations  is  the  great  and 
noble  men  and  women  they  produce.  The  memory  and 
the  record  of  the  lives  of  such  people  are  inheritances  of 
surpassing  and  enduring  value.  They  are  legacies  that 
do  not  depreciate  in  the  lapse  of  time.  If  it  were  possible 
to  find  a  country  that  could  not  point  to  any  truly  great 
characters  it  had  produced,  it  would  have  but  little  at 
traction  for  the  human  race.  "Whatever  of  material  wealth 
it  might  contain  would  be  transplanted  to  climes  more 
fortunate  in  producing  high  talent  and  exalted  char 
acter.  . 

The  decisions  of  Chief  Justice  Marshall,  which  are 
many  and  varied,  comprehending  almost  the  entire  sweep 
of  the  Constitution,  have  become  no  less  famous  and  will 
be  no  less  enduring  than  the  instrument  itself.  Mr.  Phelps 
has  admirably  said:  "Time  has  demonstrated  their  wis 
dom.  They  have  remained  unchanged,  unquestioned,  un 
challenged.  All  the  subsequent  labors  of  that  high  tribu 
nal  on  the  subject  of  constitutional  law  have  been  founded 
on,  and  have  at  least  professed  and  attempted  to  follow, 
them.  There  they  remain.  They  will  always  remain. 
They  will  stand  as  long  as  the  Constitution  stands;  and 
if  that  should  perish,  they  would  still  remain  to  display 


John  Marshall  Memorial.  188 

to  the  world  the  principles  upon  which  it  rose,  and  by 
the  disregard  of  which  it  fell." 

Marshall  was  not  only  a  commanding  spirit  in  the  legis 
lative  assemblies  of  Virginia,  but  was  acknowledged  to  be 
the  ablest  constitutional  lawyer  in  Congress,  while  he  was 
a  member  of  that  body.  He  at  once  stepped  to  the  front, 
and  when  he  had  discussed  any  measure  his  treatment 
was  so  exhaustive  and  conclusive  that  it  was  seldom,  if 
ever,  attacked. 

That  he  was  a  diplomat  of  great  wisdom,  and  learned 
in  the  law  of  nations,  is  established  beyond  all  question 
by  the  State  papers,  of  which  he  was  the  author,  and 
which  now  form  a  part  of  the  treasures  of  the  govern 
ment. 

I  know  of  no  character  whose  career  as  a  lawyer  can  be 
studied  with  greater  profit  by  the  younger  members  of 
the  bar  than  that  of  John  Marshall.  He  possessed  all  of 
the  characteristics  requisite  to  professional  success  —  in 
dustry,  integrity,  perseverance,  attention  to  details,  per 
suasive  powers,  and  a  comprehensive  knowledge  of  the 
law. 

Of  Marshall  as  "  The  Statesman,"  Mr.  Oliver  E.  Branch 
said,  in  part: 

The  period  which  included  the  official,  civil  career  of 
John  Marshall  was,  in  many  ways,  the  most  critical  in 
the  history  of  the  American  people.  The  seven  years  of 
the  Eevolution  were,  indeed,  full  of  perils  to  the  high 
hopes  and  splendid  dreams  of  the  fierce  sons  of  freedom; 
and  in  that  desperate  conflict  it  often  seemed  as  though 
the  cause  of  the  colonies  was  moving  to  imminent  and 
disastrous  collapse.  And  yet,  in  the  darkest  night  of  de 
feat,  and  above  the  murky  clouds  of  disaster,  which  so 


189         New  Hampshire— Exercises  at  Annual  Dinner. 

often  and  so  long  hung  menacing  over  the  patriot  armies, 
there  shone  the  unquenchable  flame  of  that  "  spirit  of 
liberty,"  to  the  recognition  of  whose  just  claims  the 
mighty  voices  of  Chatham  and  Burke  vainly  admonished 
the  ministry  and  king;  and  which  evermore  presaged  the 
final  triumph  of  the  patriotic  cause.  .  .  . 

Time  has  vindicated  the  soundness  of  the  conservative 
interpretation  given  to  certain  important  provisions  of 
the  Constitution  by  John  Marshall,  in  the  decisions  of 
the  great  cases  which  came  before  him,  and  it  is  not  too 
much  to  say  that  they  have  contained  "  the  saving  ele 
ment  "  in  many  crises  of  the  nation's  life.  But  they  were 
not  mere  judicial  decisions.  They  were  the  work  and 
accomplishment  of  a  great  statesman  who,  like  Milton, 
saw  the  vision  "  of  a  noble  and  puissant  nation,  rousing 
herself  like  a  strong  man  after  sleep,  and  shaking  her  in 
vincible  locks;  and  as  an  eagle,  mewing  her  mighty 
youth,  and  kindling  her  undazzied  eyes  at  the  full  mid 
day  beam."  They  were  the  decisions  of  a  judge,  whose 
experience  and  professional  studies  had  logically  and  ir 
resistibly  brought  to  a  sincere  belief  in  the  general  sound 
ness  of  the  principles  of  the  Federal  party.  As  a  soldier 
and  officer  under  the  command  of  Washington,  he  was 
an  eye-witness  to  the  inefficiency  and  structural  weak 
ness  of  the  "Articles  of  Confederation;"  and,  at  the 
close  of  the  war,  to  their  lamentable  inadequacy  as  a 
form  of  government.  And  as  the  foreign  and  domestic 
affairs  of  the  States,  before  the  adoption  of  the  Constitu 
tion,  grew  daily  more  involved  and  menacing,  he  realized 
the  necessity,  to  use  his  own  compact,  expressive  words, 
"  of  a  government  competent  to  its  own  preservation,"  a 
government  "drawn  from  the  people  and  depending  on 
the  people  for  its  continuance."  And  in  every  situation 


John  Marshall  Memorial.  190 

and  office  to  which  he  was  called,  whetner  as  a  member 
of  the  Virginia  Legislature,  Yirginia  convention,  mem 
ber  of  Congress,  envoy  to  France,  Secretary  of  State,  or 
Chief  Justice  of  the  Supreme  Court,  he  strove  firmly  and 
consistently  towards  the  realization  of  that  ideal.  .  . 

Washington,  Henry,  Hamilton,  Adams,  Jefferson,  Madi 
son,  Jay,  Story,  Marshall !  What  land  or  age  can  furnish 
forth  such  a  group  of  noble  names,  wreathed  about  by  so 
much  of  splendid  fame !  They  are  "  the  dead  but  scep- 
tered  sovereigns "  of  this  mighty  Kepublic,  "  who  still 
rule  our  spirits  from  their  urns." 

"  Those  suns  have  set,  0  rise  some  other  such." 

Of  Marshall  as  "A  Literary  Man,"  Mr.  Charles  E. 
Corning  remarked: 

Because  "  The  Federalist "  has  for  its  motive  a  consti 
tutional  way  of  living,  expressed  with  rhythmic  balance 
and  scholarly  polish,  it  is  none 'the  less  deserving  the 
claim  of  a  literary  production.  To  reject  "  The  Federal 
ist  "  because  it  does  not  sound  in  the  narrative  of  fiction 
is  to  reject "  The  Imitation  of  Christ "  for  the  same  reason. 
As  the  masterpiece  of  Thomas  a  Kempis  portrays  all 
that  is  elevating,  passionate,  and  pious  in  religion,  so  the 
masterpiece  of  our  American  statesmen  sets  forth  in 
fervent  phrase  the  paramount  principles  of  modern  gov 
ernment. 

When  we  admit  that  "  The  Federalist "  is  entitled  to 
the  rank  of  literature,  and  narrowness  must  give  way  and 
so  admit  it,  then  we  shall  have  no  difficulty  in  assigning 
to  John  Marshall  a  place  among  the  literary  figures  of 
the  republic.  But  Marshall  is  doubly  entitled,  for  he  has 
left  not  only  to  all  ages  a  casket  of  constitutional  literary 


191         New  Hampshire— -Exercises  at  Annual  Dinner. 

gems  of  the  finest  quality,  but  he  has  won  his  literary 
claim  by  virtue  of  his  labor  as  a  biographer. 

The  "Life  of  Washington"  was  John  Marshall's  only 
contribution  to  what  we  term  professional  literary  work; 
it  is  his  one  book,  his  one  credential  to  the  world  of  let 
ters.  Were  that  work  the  sum  of  his  intellectual  ability 
it  would  still  entitle  him  to  the  ranks  of  biographers  and 
preserve  his  name  in  encyclopedias  of  literary  men  and 
women;  but  Marshall's  fame  covers  the  far  wider  field  of 
constitutional  research  and  exposition,  where  he  stands 
without  a  rival.  As  one  of  the  great  authorities  of  judi 
cial  exposition  in  England,  as  well  as  in  the  United  States 
and  in  the  world  of  international  law,  his  name  is  im 
perishable.  John  Marshall  occupies  a  niche  almost  unique 
in  the  vast  and  imposing  literature  of  the  law. 

His  opinions,  extending  over  the  formative  period  of 
our  national  history,  comprise  a  branch  of  literature  such 
as  very  few  lawyers  leave  behind  them,  and  that  those 
great  legal  discourses  might  be  set  before  coming  genera 
tions,  they  were  published  in  1839,  under  the  scholarly 
and  affectionate  supervision  of  Joseph  Story.  The  title 
of  the  book  was  "  The  Writings  of  John  Marshall,  late 
Chief  Justice  of  the  United  States,  upon  the  Federal  Con 
stitution."  Herein  are  contained  those  immortal  maxims 
of  our  national  existence,  those  clear  sentences  expressive 
of  that  supreme  organism  from  which  nationality  derived 
its  succor  and  strength,  let  us  hope,  for  life  eternal.  Let 
us,  then,  call  that  his  lasting  contribution  to  his  country's 
literature,  for  there  he  shone  like  the  Sirius  of  the  heavens, 
outshining  all  others  with  that  serene  and  illuminating 
genius  which  shall  endure  as  long  as  the  birthright  of 
the  American  people  stands  for  union  and  nationality. 


John  Marshall  Memorial.  192 

In  his  review  of  "  John  Marshall,  the  Practitioner," 
Mr.  John  S.  H.  Frink  said  in  part: 

After  young  Marshall  had  concluded  his  Revolution 
ary  service  with  an  artificial  equipment  very  meagre,  but 
with  a  natural  one  unsurpassed,  he  commenced  the  prac 
tice  of  his  profession  in  his  native  county. 

Litigation  was  large.  The  courts  were  crowded  with 
suits.  During  the  war  of  the  Revolution  "silent  inter 
arma  leges;  "  and  not  only  were  legal  rights  suspended, 
which  were  revived  at  its  termination,  but  new  ones 
arising  from  the  changed  condition  of  affairs  engaged  the 
attention  of  the  lawyer  of  those  days.  In  such  an  era 
John  Marshall  embarked  upon  the  practice  of  his  pro 
fession  among  his  old  friends,  neighbors  and  brother  sol 
diers. 

His  mind  was  clouded  by  no  sophistries,  and  he  did 
not  conceal  his  processes  by  redundant  or  rhetorical 
words.  Despising  the  arts  of  vulgar  advocates  he  enforced 
the  subject  as  he  saw  it  himself.  Indeed  he  stripped  his 
case  of  all  these  disguises,  and  held  it  up  before  the  court 
in  the  clear  light  of  justice.  "Justice  without  wisdom 
is  impossible."  Having  the  wisdom  to  detect  the  justice 
of  his  case,  he  certainly  had  the  wisdom  to  present  it  in 
its  most  convincing  shape. 

These  were  the  characteristics  of  Mr.  Marshall  in  his 
early  practice,  and  they  abided  with  him,  developed  and 
perfected,  so  long  as  he  continued  at  the  bar  and  during 
his  illustrious  career  upon  the  bench. 

Mr.  Webster  has  said  that  the  power  of  clear  state 
ment  is  the  great  power  at  the  bar.  That  Mr.  Marshall 
had  in  the  most  remarkable  degree.  He  was  little  prone 
to  exaggeration  and  rejected  all  the  tricks  of  speech,  but 
presented  his  case  u  plainly,  concisely,  accurately."  He 


193         New  Hampshire — Exercises  at  Annual  Dinner. 

spoke  to  the  judgment,  not  to  the  passions  or  prejudices, 
of  his  auditors. 

Any  analysis  of  the  powers  of  an  eminent  lawyer  as  a 
thinker  and  talker  would  be  very  inadequate  without  some 
description  of  his  manner  of  speech  and  personal  appear 
ance.  Mr.  Marshall  derived  but  little  aid  from  theso 
sources.  His  speech  at  the  commencement  of  his  discourse 
was  slow  and  halting,  his  voice  unmelodious  and  dry, 
and  his  personal  bearing  awkward.  It  seemed  as  if  his 
mind  was  struggling  with  its  topic,  and  his  ideas  were  too 
many  to  find  ready  utterance.  His  hearers  never  for  a 
moment  doubted  that  he  thoroughly  understood  the  mat 
ter  in  hand  and  was  master  of  it.  He  soon  became  so  en 
grossed  in  his  subject  that  he  overcame  these  external 
disadvantages,  until,  to  quote,  "  finally  his  voice  became 
full  and  clear  and  rapid,  his  manner  bold,  .  .  ,  and 
he  poured  forth  an  unbroken  stream  of  eloquence  in  a 
current  deep,  majestic,  smooth  and  strong." 

John  Marshall's  fame  rests  largely  upon  his  opinions 
in  the  department  of  constitutional  law.  He  seemed  to 
read  the  Constitution  by  intuition,  yet  his  preparation 
for  this  great  work  was  laid  strong  and  deep,  while  prac 
tising  at  the  bar  in  Richmond,  not  necessarily  in  the 
courts  of  his  State,  but  in  her  legislative  assemblies  and 
the  Constitutional  Convention. 
VOL.  I  — 13 


COMMONWEALTH  OF  MASSACHUSETTS. 

In  Massachusetts  the  following  members  of  the  bar 
were  selected  by  the  National  Committee  of  the  Ameri 
can  Bar  Association  to  act  as  a  general  committee  of  ar 
rangements  for  the  celebration  of  Marshall  Day :  Marquis 
F.  Dickinson,  chairman;  James  Barr  Ames,  Patrick  A. 
Collins,  Lewis  S.  Dabney,  Henry  S.  Dewey,  Frederick  P. 
Fish,  John  C.  Gray,  Charles  S.  Hamlin,  Alfred  Hemen- 
way,  Kobert  M.  Morse,  and  Moorfield  Storey.1 

It  was  found  that  plans  had  already  been  made  at 
Harvard  University  for  the  delivery  of  an  address  be 
fore  the  Harvard  Law  School  on  the  character  and  services 
of  Chief  Justice  Marshall,  by  Professor  James  Bradley 
Thayer  of  that  school.  The  committee  availed  itself  of 

1  The  relation  here  given  of  the  proceedings  in  the  Commonwealth 
of  Massachusetts  in  commemoration  of  John  Marshall  is,  by  permis 
sion  of  the  editor,  generously  accorded,  taken  from  a  volume  (pages 
x vii,120)  carefully  edited,beautifully  printed  and  embellished,  bearing 
the  following  title:  "John  Marshall:  The  Tribute  of  Massachusetts, 
being  the  addresses  delivered  at  Boston  and  Cambridge,  February  4> 
1901,  in  commemoration  of  the  one  hundredth  anniversary  of  his 
elevation  to  the  bench  as  Chief  Justice  of  the  Supreme  Court  of  the 
United  States.  Edited  by  Marquis  F.  Dickinson,  Esq.,  of  the  Boston 
Bar."  Boston:  Little,  Brown,  and  Company,  1901. 

The  volume  is  illustrated  by  portraits  of  John  Marshall,  1831  (pho 
togravure  from  the  original  portrait  by  Henry  Inman),  John  Marshall, 
1808  (from  a  crayon  by  Saint-Memin),  Hosea  Morrill  Knowlton, 
Oliver  Wendell  Holmes,  Henry  Pickering  Walcott,  James  Bradley 
Thayer,  John  Chipman  Gray,  Henry  St.  George  Tucker,  Richard 
Olney. 


195  Massachusetts — Introduction. 

the  opportunity  thus  presented  to  make  that  address  a 
part  of  the  general  programme  of  the  day.  This  pro 
gramme  included  appropriate  ceremonies  in  the  Supreme 
Judicial  Court  at  Boston  in  the  morning,  the  address  of 
Professor  Thayer  in  Sanders  Theatre  at  Cambridge  in 
the  afternoon,  and  a  dinner  at  the  new  Algonquin  Club 
in  Boston,  under  the  auspices  of  the  Bar  Association  of 
the  City  of  Boston,  in  the  evening.  The  following  gen 
tlemen,  officers  of  the  Boston  Bar  Association,  were  ap 
pointed  by  that  body  to  have  charge  of  the  arrangements 
for  the  dinner:  Charles  P.  Greenough,  vice-president; 
William  F.  Wharton,  secretary;  William  S.  Hall,  treas 
urer;  Charles  B.  Southard,  representing  the  executive 
committee. 

Inasmuch  as  the  appointment  of  John  Marshall  of  Vir 
ginia  was  made  by  President  John  Adams  of  Massachu 
setts,  it  was  thought  by  the  committee  to  be  appropriate 
that  the  union  of  the  two  States  in  so  auspicious  an  event 
should  be  recognized  at  the  proposed  celebration  by  invit 
ing  some  distinguished  member  of  the  bar  of  Virginia  to 
be  the  special  guest  of  the  day.  Accordingly,  Professor 
Henry  St.  George  Tucker,  Dean  of  the  Law  School  of 
Washington  and  Lee  University,  Lexington,  Virginia, 
was  invited,  and  honored  the  occasion  by  his  presence. 

The  exercises  in  the  Supreme  Judicial  Court  were  brief 
but  deeply  impressive.  The  court  room  proved  entirely 
inadequate  for  the  accommodation  of  those  seeking  ad 
mittance.  Hundreds  turned  reluctantly  away  from  its 
doors.  The  bar  was  thronged  by  many  of  its  best  known 
members,  together  with  a  few  distinguished  citizens  not 
of  the  legal  profession,  especially  invited  to  be  present. 
The  justices  of  the  Superior  and  Municipal  Courts,  led  by 
their  respective  Chief  Justices,  Mason  and  Parmenter, 


John  Marshall  Memorial.  196 

were  in  attendance.  At  ten  o'clock  the  justices  of  the 
Supreme  Judicial  Court  came  in,  led  by  his  Honor, 
Oliver  Wendell  Holmes,  Chief  Justice,  and  accompanied 
by  his  Excellency  W.  Murray  Crane,  Governor  of  the 
Commonwealth,  who  occupied  a  place  upon  the  bench  at 
the  right  of  the  Chief  Justice.  All  remained  standing 
while  proclamation  was  made  by  the  crier,  according  to 
the  ancient  formula  used  in  opening  the  courts  of  Massa 
chusetts.  The  address  to  the  court  by  Attorney-General 
Knowlton,  representing  the  members  of  the  bar,  and  the 
response  by  Chief  Justice  Holmes  followed,  after  which 
the  court  adjourned. 

The  address  of  Professor  Thayer  was  delivered  in  San 
ders  Theatre,  Harvard  University,  Cambridge,  at  four 
o'clock  P.  M.  The  severest  snow  storm  of  the  season  had 
set  in  before  midday,  but  this  did  not  prevent  the  at 
tendance  of  a  very  large  audience,  comprising  the  Fac 
ulty  and  students  of  the  Harvard  Law  School,  heads  of 
other  departments  in  the  University,  judges  and  mem 
bers  of  the  bar  from  different  sections  of  the  Common 
wealth.  As  President  Eliot  was  absent  from  the  country, 
the  speaker  was  introduced  by  Dr.  Henry  Pickering  Wal- 
cott,  Acting  President  of  the  University. 

Two  hundred  and  twenty-five  persons  sat  down  at  the 
dinner  given  in  the  evening  under  the  auspices  of  the 
Bar  Association  of  the  City  of  Boston,  in  the  banquet 
hall  of  the  New  Algonquin  Club.  The  size  of  the  room 
so  closely  limited  the  number  who  could  be  accommo 
dated  that  a  large  number  of  the  members  of  the  Bar 
were  necessarily  excluded  from  attendance  upon  the  din 
ner.  Professor  John  Chip  man  Gray,  of  the  Harvard 
Law  School,  President  of  the  Bar  Association  of  the  City 
of  Boston,  presided,  and  introduced  the  speakers  of  the 


197      Massachusetts  —  Address  of  Atty.  Gen.  Knowlton. 

evening,  who  were  Professor  Tucker  of  Virginia  and 
Eichard  Olney  of  Massachusetts.  Their  addresses  closed 
the  exercises  of  the  day. 


PROCEEDINGS  IN  THE    SUPREME   JUDICIAL  COURT 

OF  MASSACHUSETTS. 

Address  of  Attorney- 9-eneral  Knowlton. 

Upon  this  morning,  a  century  ago,  the  Supreme  Court 
of  the  United  States  assembled  for  the  first  time  in  the 
city  of  Washington.  The  term  city  was  one  of  courtesy 
rather  than  of  description;  for  it  was  a  place  of  swamps 
and  woods,  a  city  without  inhabitants,  a  town  without 
houses.  Even  Pennsylvania  Avenue,  to-clay  the  most  dis 
tinctly  national,  if  not  the  most  historic,  street  in  America, 
was  a  morass  covered  with  underbrush,  impassable  to 
horse  or  foot,  without  visible  demarkation,  a  tangled 
wilderness.  There  was  only  the  dream  of  a  capital.  But 
in  that  city  and  upon  the  very  eminence  where  it  met 
this  day  one  hundred  years  ago,  the  court  has  since  al 
ways  been  held,  though  more  than  once  within  sound, 
even  within  the  very  sight,  of  the  guns  of  the  enemies  of 
the  Republic. 

It  happened,  moreover,  that  on  this  same  day,  and  in 
this  same  place,  the  commission  of  a  new  Chief  Justice 
was  read;  and  the  term  was  presided  over  for  the  first 
time  by  one  who  was  destined,  for  more  than  a  third  of 
the  century  that  has  since  intervened,  to  direct  and  con 
trol  the  policy  of  the  court,  and  to  establish  the  place 
which  it  has  since  maintained,  not  only  as  one  of  the 
three  great  and  co-ordinate  departments  of  the  Govern 
ment  of  the  Republic,  but  also  as  the  most  august  and 


John  Marshall  Memorial.  198 

powerful  tribunal  in  the  civilized  world.  This  new  Chief 
Justice  was  John  Marshall  of  Virginia. 

The  bar  of  the  United  States  has  deemed  these  two 
auspicious  events  of  sufficient  moment  to  deserve  the  at 
tention  of  the  courts  upon  the  occasion  of  this  anniver 
sary.  Occurring,  by  one  of  those  signal  coincidences 
with  which  history  is  replete,  upon  the  first  judicial  day 
of  the  nineteenth  century,  they  also  marked  the  birth 
and  beginning,  if  not  the  creation  and  the  cause,  of  the 
national  grandeur  which  has  characterized  that  century. 
Indeed,  so  closely  have  we  come  to  trace  cause  and  ef 
fect  between  the  judgments  of  that  court  and  the  growth 
of  the  nation,  that  to-day,  even  upon  this  threshold  of 
another  century,  when,  as  then,  men  are  at  issue  upon  a 
momentous  question  relating  to  the  future  policy  of  the 
United  States,  the  voice  of  clamor  is  hushed,  and  Con 
gress  waits  until  this  same  august  tribunal  pronounces  the 
decree  which  shall  bind  or  expand,  as  the  case  may  be, 
the  wings  of  National  ambition. 

Up  to  that  time  the  importance  of  the  Supreme  Court 
in  the  scheme  of  the  Federal  Government  had  scarcely 
been  appreciated.  In  the  original  proposals  for  the  erec 
tion  of  a  capitol,  prepared,  I  believe,  under  the  direction 
of  George  Washington  himself,  no  provision  was  made 
for  the  accommodation  of  the  court.  The  founders  of 
the  nation  had  inherited  the  traditions  of  the  mother 
country,  where,  owing  to  the  absolute  power  of  Parlia 
ment,  the  function  of  the  judiciary  was  limited  to  the 
settlement  of  private  disputes,  its  only  relation  to  the 
Government  being  on  the  criminal  side.  The  idea  of 
enforcement  of  constitutional  limitations  by  the  judiciary 
upon  the  other  departments  of  the  Government  and  upon 
the  States,  axiomatic  as  such  doctrines  appear  to  us,  was 


199      Massachusetts  —  Address  of  Atty.  Gen.  Knowlton. 

at  that  time  by  no  means  understood,  much  less  con 
ceded. 

Even  the  justices  themselves  failed  to  realize  their  im 
portance.  Appointments  to  the  bench  were  often  de 
clined,  and  resignations  were  frequent.  Some  judges 
retired  to  go  upon  the  bench  of  a  State  court.  Both  of 
the  Chief  Justices  who  preceded  Marshall  (not  counting 
Rutledge,  whose  appointment  was  not  confirmed,  and 
who  presided  only  one  term)  resigned  their  offices  to  be 
come  ministers  to  foreign  courts;  and  Jay,  the  first  Chief 
Justice,  when  asked  after  an  interval  of  retirement  to 
resume  his  position,  declined,  saying,  "  I  left  the  bench 
perfectly  convinced  that,  under  a  system  so  defective,  it 
could  not  attain  the  energy,  weight,  and  dignity  which 
were  essential  to  its  affording  due  support  to  the  National 
Government." 

The  whole  business  of  the  court  during  the  first  eleven 
years  of  its  existence  is  recorded  in  less  than  a  single  vol 
ume  of  the  size  of  current  reports.  Most  of  the  questions 
before  it  concerned  procedure  and  practice  in  the  Federal 
courts.  The  meagre  decisions  touching  the  scope  of  its 
own  powers  and  duties  were  for  the  most  part  confined 
to  denial  rather  than  assertion,  like  its  refusal  to  advise 
the  President,  and  its  deciding,  or  rather  its  hesitation  in 
deciding,  in  Hayburn's  case,  that  Congress  could  not  im 
pose  upon  it  the  duty  of  acting  as  auditor  to  hear  pension 
claims.  It  did  assert  the  right  to  hear  the  case  of  a  cit 
izen  against  a  State,  and  to  enter  judgment  against  the 
State;  but  this  right  was  promptly  taken  away  by  an 
amendment  to  the  Constitution.  Even  Marshall  contin 
ued  to  be  a  member  of  the  President's  Cabinet  after  his 
appointment  to  the  bench,  until  the  close  of  the  Presi 
dential  term.  So  little  was  the  true  function  of  the  court 


John  Marshall  Memorial.  200 

understood,  that  one  of  the  earliest  cases  reported  seems 
to  have  consisted  of  the  trial  of  issues  of  fact  by  a  jury, 
the  charge  being  given  by  one  of  the  justices.  It  had 
been  a  court  of  weak  beginnings  and  of  insignificant 
achievements.  It  had  not  found  its  place  in  the  scheme 
of  government.  When  the  nineteenth  century  came  in 
its  great  work  was  yet  before  it. 

The  Federal  Constitution  was  no  spontaneous  utterance 
of  a  united  people.  It  was  the  result  of  a  long,  a  bitter, 
and  an  unending  contest.  The  conflict  between  the  sov 
ereignty  of  the  State  and  the  sovereignty  of  the  Nation 
did  not  then  begin,  nor  is  it  yet  ended.  Although,  when 
the  only  alternative  in  sight  was  anarchy,  a  sullen  assent 
was  vouchsafed  to  the  terms  of  the  Constitution,  both 
sides  reserved  the  right  to  continue  the  contest.  Both 
claimed  that  it  could  be  interpreted  to  meet  their  views. 
Moreover,  upon  its  adoption  other  contentions  arose  upon 
the  question  how  far  it  acted  as  a  restraint  upon  the 
executive  and  the  legislative  departments.  The  beginning 
of  this  century  saw  these  contentions,  and  especially  that 
relating  to  the  sovereignty  of  the  States,  existing  in  all 
their  fierceness,  threatening  the  destruction  of  the  Ke- 
public.  The  Nation  was  at  the  parting  of  the  ways. 

The  only  power  adequate  to  the  settlement  of  these 
questions  under  the  Constitution  (and  even  this  was  not 
then  conceded)  was  the  Supreme  Court.  But  a  chief  was 
needed  to  direct  the  work  of  that  court,  who  should  have 
the  courage  to  assert  its  dignity  and  power.  He  must  be 
one  who  had  participated  in  the  discussions  leading  to 
the  adoption  of  the  Constitution,  familiar  with  its  origin 
and  its  history.  He  must  be  not  only  a  great  and  sound 
lawyer,  but  one  whoso  public  career,  no  less  than  the 
spotlessness  of  his  personal  reputation,  had  earned  for 


201      Massachusetts  —  Address  of  Atty.  Gen.  Knowlton. 

him  the  respect  and  confidence  of  all  men.  He  must  be 
one  who  was  willing  to  put  aside  private  ambition,  and 
make  it  his  life-work  to  establish  the  rank  of  the  court 
given  to  it  by  the  Constitution,  but  which  hitherto  had 
scarcely  been  conceded  to  it.  As  a  concession  to  her 
importance  it  were  better  that  he  be  a  citizen  of  Virginia; 
and  John  Adams  naturally  believed  he  should  be  a  Fed 
eralist.  He  found  all  these  essentials  in  John  Marshall. 
The  hour  of  fate  had  come;  and  he  was  the  man  of  the 
hour. 

Speculations  on  what  might  have  been  the  result  had 
important  events  happened  otherwise  than  they  did,  are 
usually  profitless.  But  one  cannot  forbear  indulging  in 
a  shudder  at  the  contemplation  of  what  might  have  been 
the  destiny  of  the  nation  had  the  appointment  of  Chief 
Justice  been  made  a  few  months  later  by  that  apostle  of 
the  anti-Federalists,  Thomas  Jefferson.  One  experiment 
of  a  league  of  sovereign  States  had  been  tried  and  hau 
failed.  Another  would  have  meant  hopeless  wreck.  More 
than  once,  as  we  review  the  events  of  our  history,  are  we 
led  to  recognize  with  reverence  the  hand  of  an  overruling 
Providence,  guiding  our  path,  shielding  us  from  danger 
and  destruction,  chastening  us  when  we  have  gone 
astray,  and  leading  us  on  to  become  the  lamp  of  liberty 
enlightening  the  world. 

John  Marshall  grasped  the  helm  with  the  hand  of  a 
master.  There  was  no  chart  to  guide  his  course,  except 
ing  his  conception  of  the  spirit  of  the  Constitution.  But 
that  conception  was  based  upon  a  belief  in  the  sover 
eignty  of  the  nation,  and  was  elevated  by  a  conviction  of 
the  power  and  dignity  of  the  judicial  branch  of  the  Gov 
ernment.  Within  three  years  he  had  disposed  of  a  con 
tention,  seriously  made,  that  Congress  was  not  bound  by 


John  Marshall  Memorial.  202 

the  Constitution,  excepting  as  it  might  interpret  for  it 
self  the  terms  of  that  instrument.  He  pronounced  one 
of  its  statutes  void,  and  thus  asserted  the  supremacy  of 
his  court  over  the  legislative  department, —  a  supremacy 
which  has  never  since  been  challenged,  and  which  it  is 
difficult  for  us  now  to  conceive  ever  to  have  been  chal 
lenged.  Soon  after  he  pronounced  void  an  act  of  a  State 
legislature  which  was  in  violation  of  the  Constitution  of 
the  "United  States.  Then  men  began  to  appreciate  the 
fact  that  the  Federal  power  was  supreme,  and  that, 
under  the  interpretation  of  John  Marshall,  the  Constitu 
tion  did  not  provide  a  mere  rope  of  sand  for  the  States, 
but  was  the  strong  tie  which  bound  them  together  into 
a  Nation. 

From  these  sound  beginnings  he  proceeded  with  un 
faltering  steps,  literally  building  up  a  nation  upon  the 
foundation  of  the  Constitution.  His  views  did  not  at 
first,  nor  even  during  his  life,  meet  with  universal  acqui 
escence.  During  the  whole  of  the  two  generations  of 
his  judicial  service,  he  was  the  subject  of  bitter  criticism, 
and  more  than  once  there  was  almost  open  revolt.  He 
himself  at  times  became  disheartened,  and  in  a  letter  to 
his  associate,  Joseph  Story,  in  1832,  he  said:  "I  yield 
slowly  and  reluctantly  to  the  conviction  that  our  Consti 
tution  cannot  last."  This  was  but  three  years  before  his 
death,  and  it  may  well  be  that  his  last  hours  were  clouded 
with  doubts  of  the  future  of  his  country.  But  he  had 
builded  more  wisely  and  surely  than  he  knew.  His  in 
terpretation  of  the  spirit  of  the  Constitution,  besides  hav 
ing  the  weight  of  authority,  came  eventually  to  be  ac 
cepted  as  well  for  the  truth  of  its  resistless  logic.  He 
was  not  merely  a  great  and  learned  judge.  There  have 
bsen  others.  His  title  to  the  eternal  gratitude  of  his 


203      Massachusetts  —  Address  of  Atty.  Gen.  Knowlton. 

countrymen  is  found  in  the  fact  that  he  was  the  creator 
of  constitutional  government,  as  we  now  understand 
that  term.  The  result  of  his  work  is  the  grandeur  of  the 
imperial  flag  under  which  we  live. 

Of  the  life  and  career  of  John  Marshall  it  is  not  for  me 
to  speak  in  detail  at  this  time.  It  will  be  better  done 
on  this  anniversary  by  others  more  competent  for  the  ' 
task.  Beyond  declaring  his  part  in  the  growth  of  the 
nation,  as  I  have  briefly  attempted  to  do,  I  will  content 
myself  with  observing  that,  considered  merely  as  a  judge, 
his  career  was  a  model  for  all  who  have  come  after.  Digni 
fied  and  genial,  patient  in  attention,  learned  and  logical, 
luminous  and  convincing  in  opinions;  welcoming  the  help 
that  the  bar  can  give  to  the  court;  not  lacking  in  respect 
for  the  executive  and  legislative  departments,  and  for  that 
presumption  of  right  which  should  be  accorded  to  them, 
but  never  forgetting  that  the  function  of  the  court  is  to 
be  true  to  its  own  lights  and  not  subservient  to  the  stand 
ard  of  the  Legislature, —  he  created  for  the  court  a  respect 
and  esteem  which  has  never  since  been  shaken,  and  es 
tablished  a  standard  of  judicial  deportment  which  may 
well  be  followed  to-day. 

But  it  is  by  the  high  principles  he  promulgated  and 
upheld,  and  upon  which  this  nation  has  grown  to  grandeur, 
rather  than  by  any  mere  judicial  eminence,  that  he  will 
be  remembered  while  the  nation  endures. 

As  I  stood,  last  month,  upon  the  steps  of  the  National 
Capitol,  I  was  led  to  contrast  in  my  mind  the  splendid 
panorama  there  unfolded  with  the  rude  beginnings  of  a 
century  ago.  But  I  also  reflected  that  in  the  luminous 
clearness  of  John  Marshall's  vision  there  has  been,  there 
can  be,  no  advance.  A  hundred  years  hence  the  material 
achievements  of  the  nation  may  eclipse  those  of  to-day, 


John  Marshall  Memorial.  201 

even  as  we  have  surpassed  those  of  the  founders  of  the 
Republic;  or,  on  the  other  hand,  some  future  Marius 
may  contemplate  from  the  same  eminence  upon  which  I 
stood  the  ruins  of  the  capital  of  a  once  great  nation.  The 
things  of  this  world  pass  away  and  are  forgotten.  But 
the  prophetic  wisdom  and  truth  of  the  principles  enunci 
ated  by  John  Marshall  will  endure  through  the  ages,  and 
his  courage  and  sagacity  in  discovering  and  establishing 
them  will  be  his  deathless  renown. 

In  view  of  the  solemnity  of  this  anniversary  and  of 
what  it  means  to  us  and  to  our  fathers  and  to  our  chil 
dren  as  well,  I  have  the  honor  to  suggest  in  behalf  of  my 
associates  that  the  work  of  the  court  be  suspended  for  the 
day,  that  the  bar  and  the  court  may  appropriately  cele 
brate  the  occasion;  and  to  that  end  I  move  that  the  court 
do  now  adjourn. 

Response  of  Chief  Justice  Holmes. 

As  we  walk  down  Court  street  in  the  midst  of  a  jost 
ling  crowd,  intent  like  us  upon  to-day  and  its  affairs,  our 
eyes  are  like  to  fall  upon  the  small,  dark  building  that 
stands  at  the  head  of  State  street,  and,  like  an  ominous 
reef,  divides  the  stream  of  business  in  its  course  to  the 
gray  cliffs  that  tower  beyond.  And,  whoever  we  may 
be,  we  may  chance  to  pause  and  forget  our  hurry  for  a 
moment,  as  we  remember  that  the  first  waves  that  fore 
told  the  coming  storm  of  the  Revolution  broke  around 
that  reef.  But,  if  we  are  lawyers,  our  memories  and  our 
reverence  grow  more  profound.  In  the  Old  State  House, 
we  remember,  James  Otis  argued  the  case  of  the  writs 
of  assistance,  and  in  that  argument  laid  one  of  the  foun 
dations  for  American  constitutional  law.  Just  as  that 


205     Massachusetts  —  Response  of  Cfyef  Justice  Holmes. 

little  building  is  not  diminished,  but  rather  is  enhanced 
and  glorified,  by  the  vast  structures  which  somehow  it 
turns  into  a  background,  so  the  beginnings  of  our  na 
tional  life,  whether  in  battle  or  in  law,  lose  none  of  their 
greatness  by  contrast  with  all  the  mighty  things  of  later 
date,  beside  which,  by  every  law  of  number  and  meas 
ure,  they  ought  to  seem  so  small.  To  us  who  took  part 
in  the  Civil  War,  the  greatest  battle  of  the  Eevolution 
seems  little  more  than  a  reconnoisance  in  force,  and  Lex 
ington  and  Concord  were  mere  skirmishes  that  would 
not  find  mention  in  the  newspapers.  Yet  veterans  who 
have  known  battle  on  a  modern  scale  are  not  less  aware 
of  the  spiritual  significance  of  those  little  fights,  I  ven 
ture  to  say,  than  the  enlightened  children  of  commerce 
who  tell  us  that  soon  war  is  to  be  no  more. 

If  I  were  to  think  of  John  Marshall  simply  by  num 
ber  and  measure  in  the  abstract,  I  might  hesitate  in  my 
superlatives,  just  as  I  should  hesitate  over  the  battle  of 
the  Brandy  wine  if  I  thought  of  it  apart  from  its  place  in 
the  line  of  historic  cause.  But  such  thinking  is  empty 
in  the  same  proportion  that  it  is  abstract.  It  is  most 
idle  to  take  a  man  apart  from  the  circumstances  which, 
in  fact,  were  his.  To  be  sure,  it  is  easier  in  fancy  to 
separate  a  person  from  his  riches  than  from  his  charac 
ter.  But  it  is  just  as  futile.  Kemove  a  square  inch  of 
mucous  membrane,  and  the  tenor  will  sing  no  more. 
Remove  a  little  cube  from  the  brain,  and  the  orator  will 
be  speechless;  or  another,  and  the  brave,  generous  and 
profound  spirit  becomes  a  timid  and  querulous  trifler. 
A  great  man  represents  a  great  ganglion  in  the  nerves 
of  society,  or,  to  vary  the  figure,  a  strategic  point  in  the 
campaign  of  history,  and  part  of  his  greatness  consists  in 
his  being  there.  I  no  more  can  separate  John  Marshall 


John  Marshall  Memorial.  206 

from  the  fortunate  circumstance  that  the  appointment  of 
Chief  Justice  fell  to  John  Adams,  instead  of  to  Jefferson 
a  month  later,  and  so  gave  it  to  a  Federalist  and  loose 
constructionist  to  start  the  working  of  the  Constitution, 
than  I  can  separate  the  black  line  through  which  he  sent 
his  electric  fire  at  Fort  Wagner  from  Colonel  Shaw. 
When  we  celebrate  Marshall  we  celebrate  at  the  same 
time  and  indivisibly  the  inevitable  fact  that  the  oneness 
of  the  nation  and  the  supremacy  of  the  National  Consti 
tution  were  declared  to  govern  the  dealings  of  man  with 
man  by  the  judgments  and  decrees  of  the  most  august  of 
courts. 

I  do  not  mean,  of  course,  that  personal  estimates  are 
useless  or  teach  us  nothing.  No  doubt  to-day  there  will 
be  heard  from  able  and  competent  persons  such  estimates 
of  Marshall.  But  I  will  not  trench  upon  their  field  of 
work.  It  would  be  out  of  place  when  I  am  called  on 
only  to  express  the  answer  to  a  motion  addressed  to  the 
Court  and  when  many  of  those  who  are  here  are  to  listen 
this  afternoon  to  the  accomplished  teacher  who  has  had 
every  occasion  to  make  a  personal  study  of  the  judge,  and 
again  this  evening  to  a  gentleman  who  shares  by  birth 
the  traditions  of  the  man.  My  own  impressions  are  only 
those  that  I  have  gathered  in  the  common  course  of  legal 
education  and  practice.  In  them  I  am  conscious,  per 
haps,  of  some  little  revolt  from  our  purely  local  or  na 
tional  estimates,  and  of  a  wish  to  see  things  and  people 
judged  by  more  cosmopolitan  standards.  A  man  is  bound 
to  be  parochial  in  his  practice  —  to  give  his  life,  and  if 
necessary  his  death,  for  the  place  where  he  has  his  roots. 
But  his  thinking  should  be  cosmopolitan  and  detached. 
He  should  be  able  to  criticise  what  he  reveres  and  loves. 

The  "Federalist,"  when  I  read  it  many  years  ago, 


207     Massachusetts  —  Response  of  Cfyef  Justice  Holmes. 

seemed  to  me  a  truly  original  and  wonderful  production 
for  the  time.  I  do  not  trust  even  that  judgment  unre- 
vised  when  I  remember  that  the  "  Federalist "  and  its 
authors  struck  a  distinguished  English  friend  of  mine  as 
finite ;  and  I  should  feel  a  greater  doubt  whether,  after 
Hamilton  and  the  Constitution  itself,  Marshall's  work 
proved  more  than  a  strong  intellect,  a  good  style,  per 
sonal  ascendency  in  his  court,  courage,  justice  and  the 
convictions  of  his  party.  My  keenest  interest  is  excited, 
not  by  what  are  called  great  questions  and  great  cases, 
but  by  little  decisions  which  the  common  run  of  selectors 
would  pass  by  because  they  did  not  deal  with  the  Con 
stitution  or  a  telephone  company,  yet  which  have  in  them 
the  germ  of  some  wider  theory,  and  therefore  of  some 
profound  interstitial  change  in  the  very  tissue  of  the  law. 
The  men  whom  I  should  be  tempted  to  commemorate 
would  be  the  originators  of  transforming  thought.  They 
often  are  half  obscure,  because  what  the  world  pays  for 
is  judgment,  not  the  original  mind. 

But  what  I  have  said  does  not  mean  that  I  shall  join 
in  this  celebration  or  in  granting  the  motion  before  the 
court  in  any  half-hearted  way.  Not  only  do  I  recur  to 
what  I  said  in  the  beginning,  and  remembering  that  you 
cannot  separate  a  man  from  his  place,  remember  also  that 
there  fell  to  Marshall  perhaps  the  greatest  place  that  ever 
was  filled  by  a  judge;  but  when  I  consider  his  might,  his 
justice,  and  his  wisdom,  I  do  fully  believe  that  if  Ameri 
can  law  were  to  be  represented  by  a  single  figure,  sceptic 
and  worshipper  alike  would  agree  without  dispute  that 
the  figure  could  be  but  one  alone,  and  that  one  John 
Marshall. 

A  few  words  more  and  I  have  done.  "We  live  by  sym 
bols,  and  what  shall  be  symbolized  by  any  image  of  the 


John  Marshall  Memorial.  208 

sight  depends  upon  the  mind  of  him  who  sees  it.  The 
setting  aside  of  this  day  in  honor  of  a  great  judge  may 
stand  to  a  Virginian  for  the  glory  of  his  glorious  State ; 
to  a  patriot  for  the  fact  that  time  has  been  on  Marshall's 
side,  and  that  the  theory  for  which  Hamilton  argued,  and 
he  decided,  and  Webster  spoke,  and  Grant  fought,  and 
Lincoln  died,  is  now  our  cornerstone.  To  the  more  ab 
stract  but  farther-reaching  contemplation  of  the  lawyer, 
it  stands  for  the  rise  of  a  new  body  of  jurisprudence,  by 
which  guiding  principles  are  raised  above  the  reach  of 
statute  and  State,  and  judges  are  entrusted  with  a  solemn 
and  hitherto  unheardof  authority  and  duty.  To  one  who 
lives  in  what  may  seem  to  him  a  solitude  of  thought,  this 
day  —  as  it  marks  the  triumph  of  a  man  whom  some 
Presidents  of  his  time  bade  carry  out  his  judgments  as 
he  could  —  this  day  marks  the  fact  that  all  thought  is 
social,  is  on  its  way  to  action;  that,  to  borrow  the  expres 
sion  of  a  French  writer,  every  idea  tends  to  become  first 
a  catechism  and  then  a  code;  and  that  according  to  its 
worth  his  unhelped  meditation  may  one  day  mount  a 
throne,  and  without  armies,  or  even  with  them,  may 
shoot  across  the  world  the  electric  despotism  of  an  unre- 
sisted  power.  It  is  all  a  symbol,  if  you  like,  but  so  is  the 
flag.  The  flag  is  but  a  bit  of  bunting  to  one  who  insists 
on  prose.  Yet,  thanks  to  Marshall  and  to  the  men  of  his 
generation  —  and  for  this  above  all  we  celebrate  him  and 
them  —  its  red  is  our  life-blood,  its  stars  our  world,  its 
blue  our  heaven.  It  owns  our  land.  At  will  it  throws 
away  our  lives. 

The  motion  of  the  bar  is  granted,  and  the  Court  will 
now  adjourn. 


209  Massachusetts  — Address  of  Professor  Tfyayer. 

PROCEEDINGS   IN    SANDERS    THEATRE,    HARVARD 
UNIVERSITY. 

Introductory  Remarks  by  Henry  Pickering  Walcott,  Acting 
President  of  Harvard  University. 

One  hundred  years  ago  President  John  Adams  of 
Massachusetts  nominated  John  Marshall  of  Virginia,  then 
Secretary  of  State,  Chief  Justice  of  the  Supreme  Court 
of  the  United  States.  For  more  than  a  generation  he 
presided  there,  and  largely  in  consequence  of  his  influence 
it  became  the  most  august  judicial  tribunal  on  the  face 
of  the  earth,  of  which  De  Tocqueville  wrote,  "  In  the 
hands  of  the  Supreme  Court  repose  unceasingly  the  peace, 
the  prosperity,  the  existence  even,  of  the  Union."  In  the 
year  1806  Harvard  College  bestowed  upon  Marshall  its 
highest  honorary  degree,  and  now,  in  another  century, 
we  meet  here  in  this  Memorial  Hall  to  again  do  honor  to 
the  undiminished  memory  of  John  Marshall. 

I  have  the  honor  of  presenting  to  you  the  orator  of  this 
afternoon,  James  Bradley  Thayer,  Weld  Professor  of  Law. 

Address  of  Professor  Thayer.1 

It  is  one  hundred  years  ago  to-day  since  the  Supreme 
Court  of  the  United  States  first  sat  at  Washington,  the 
new  capital, —  that  "  wilderness  city,  set  in  a  mud-hole," 
of  whose  beginnings  we  have  lately  been  reading.  The 
Court  sat  with  a  new  Chief  Justice,  John  Marshall  of 
Virginia.  It  is  in  commemoration  of  him  and  of  this 

1  This  address  of  Professor  Thayer  is  printed  by  kind  permission 
of  Messrs.  Houghton,  Mifflin  and  Company,  publishers  of  a  volume 
entitled  "  John  Marshall,"  by  the  same  author,  in  which  most  of  this 
address  is  contained. 
VOL.  1  —  14 


John  Marshall  Memorial.  210 

event,  so  auspicious,  the  beginning  of  inestimable  bene 
fits  to  his  country,  that  we  have  gathered  now,  moved 
by  an  impulse  that  brings  together  others  of  our  country 
men  all  over  the  United  States.  Outside  of  Yirginia, 
few  have  a  better  right  to  celebrate  this  event  than  we 
who  are  here  assembled;  for  the  President  who  selected 
and  commissioned  Marshall  was  John  Adams  of  Massa 
chusetts,  alumnus  of  Harvard  and  member  of  the  Suffolk 
bar. 

At  that  time  Marshall  was  something  over  forty-five 
years  old.  He  was  born  on  September  24,  1755.  His 
home  had  always  been  in  Yirginia.  The  first  twenty 
years  of  his  life  were  passed  wholly  in  that  part  of  Prince 
William  county  which  became,  two  or  three  years  after 
his  birth,  the  new,  wide-spreading  frontier  county  of 
Fauquier, —  so  named,  after  a  Yirginia  fashion,  from  the 
new  royal  Governor  of  1758.  He  was  born  in  the  east 
ern  part  of  it,  and1  after  some  ten  years  went  with  his 
father  to  the  western  part,  at  Oakhill  and  the  neighbor 
hood,  just  under  the  Blue  Ridge.  They  show  you  still 
at  Midland,  on  the  Southern  Kailroad,  a  little  south  of 
Manassas,  a  small,  rude  heap  of  bricks  and  rubbish,  as 
being  all  that  is  left  of  the  house  where  Marshall  was 
born ;  and  children  on  the  farm  reach  out  to  you  a  hand 
ful  of  the  bullets  with  which  that  sacred  spot  and  the 
whole  region  were  thickly  sown  before  a  generation  had 
passed,  after  Marshall's  death.  His  education  was  got 
partly  from  his  father,  a  man  of  character  and  marked 
courage  and  capacity,  who  served  as  colonel  in  the  War 
of  Independence,  and  partly  from  such  teachers  as  the 
neighborhood  furnished.  For  about  a  year,  also,  he  was 
at  a  school  in  Westmoreland  county,  where  his  father 
and  George  Washington  had  attended ;  and  there  James 


211  Massachusetts  —  Address  of  Professor  Thayer. 

Monroe  was  his  schoolmate.  At  home,  when  he  was 
about  eighteen  years  old,  he  took  up  Blackstone,  a  book 
then  lately  printed.  But  he  dropped  it  soon,  for  difficul 
ties  with  the  mother  country  were  thickening,  and  Mar 
shall  began  the  military  drill. 

From  1773,  for  eight  years,  he  was  mainly  a  soldier,  at 
first  learning  and  teaching  the  drill,  and  then  for  five  or 
six  years  in  active  service,  as  an  officer  in  the  Virginia 
Militia  and  the  Continental  Army. 

During  a  lull,  for  a  few  months,  in  the  latter  part  of 
this  period,  he  studied  law  and  philosophy  at  William  and 
Mary  College;  and,  in  1780,  was  admitted  to  the  bar. 
Beginning  practice  the  next  year,  for  the  following  six 
teen  years,  before  entering  the  field  of  national  politics, 
he  practiced  law,  at  first  in  his  native  county,  and  then, 
after  his  marriage  in  1783,  at  Richmond  —  a  little  town 
in  the  upland,  whither  for  safety  the  State  archives  had 
been  transferred  from  Williamsburg,  and  which  had  now 
become  the  capital  of  the  State.  From  the  beginning  he 
was  successful.  Soon  his  success  was  distinguished,  and 
he  led  the  Richmond  bar.  During  this  period  he  was 
eight  times  a  member  of  the  Assembly;  for  two  years  on 
the  Executive  Council;  and  a  member  of  the  Virginia 
Federal  Convention  in  1788.  Once  only  he  argued  a  case 
before  the  Supreme  Court  in  Philadelphia.  Although  he 
lost  it  in  1796,  yet  his  argument  made  him  famous,  and 
he  came  then  to  know  the  leaders  in  politics.  Having 
declined,  in  1795,  the  office  of  Attorney-General  of  the 
United  States,  and  in  1796  that  of  Minister  to  France, 
both  offered  him  by  Washington,  he  accepted  the  next 
year,  at  the  hands  of  Adams,  the  position  of  Envoy-Extra 
ordinary  to  France,  in  connection  with  Charles  Cotes- 


John  Marshall  Memorial.  212 

worth  Pinckney  of  South  Carolina  and  Elbridge  Gerry 
of  Massachusetts. 

He  returned  to  the  United  States  in  1798,  and  new 
honors  poured  in  upon  him  fast.  Yery  unwillingly,  at 
the  urgent  request  of  Washington,  he  allowed  himself  to 
be  a  candidate  for  Congress  in  that  year,  and  was  elected. 
In  the  same  year,  he  declined  the  place  of  justice  of  the 
Supreme  Court  of  the  United  States,  offered  him  by  Presi 
dent  Adams.  In  the  spring  of  1799,  without  his  own 
knowledge,  he  was  nominated  Secretary  of  War,  and, 
against  his  request  to  withdraw  the  nomination,  it  was 
confirmed.  But  he  did  not  enter  upon  this  office;  for  the 
sudden  withdrawal  of  Timothy  Pickering  as  Secretary  of 
State  led  to  Marshall's  appointment  as  his  successor.  He 
accepted  that  office,  and  filled  it  for  the  remainder  of  the 
President's  term.  And  finally,  while  he  had  still  to  serve 
as  Secretary  of  State  for  a  month  or  more,  on  the  31st  of 
January,  1801,  he  was  commissioned  Chief  Justice  of  the 
United  States.  During  the  following  month,  at  the  Presi 
dent's  request,  he  joined  in  his  own  person,  strangely 
enough  as  it  seems  to  us  of  the  present  day,  the  functions 
of  the  head  of  the  judiciary  and  head  of  the  executive 
Cabinet.  This  had  happened,  however,  twelve  years  be 
fore,  in  the  case  of  John  Jay. 

Such  was  the  experience,  and  such  the  training,  that 
of  a  soldier,  a  lawyer  and  a  statesman,  with  which  our 
great  Chief  Justice  began  his  new  career. 

During  the  thirty-four  years  and  more  that  were  to 
follow,  before  Marshall  died  in  office,  in  his  eightieth 
year,  he  bore  himself  with  that  distinction  of  intellect, 
that  competent  learning,  and  that  strength,  dignity, 
sweetness,  and  unaffected  simplicity  of  character  that  all 
men  know,  and  that  made  him  no  less  beloved  by  his 


213  Massachusetts  —  Address  of  Professor  T foyer. 

friends  than  he  was  honored  and  admired  by  all  his  coun 
trymen. 

A  strange  felicity  it  was  for  our  country  in  those  early 
shaping  days,  when  the  character  of  its  leaders  meant  so 
much,  that  the  career  of  Washington,  as  its  Chief  Execu 
tive,  should  have  been  followed  so  soon  by  that  of  Mar 
shall  in  its  chief  judicial  seat.  Hardly  can  two  nobler 
public  men  be  found  in  the  history  of  mankind  than  these 
two  Virginians.  Yes,  Yirginians  !  and  we  like  to  think 
of  that  to-day  as  we  welcome  here  our  distinguished  guest 
[Mr.  Tucker]. 

Virginia  gave  us  these  imperial  men, — 
She  gave  us  these  unblemished  gentlemen: 
What  can  we  give  her  back  but  love  and  praise, 
As  in  the  dear,  old,  unestranged  days. 

I  have  now  given  a  short  summary  of  Marshall's  life 
up  to  the  time  that  he  became  Chief  Justice.  It  is  with 
great  regret  that  I  pass  over  most  of  the  details  of  his 
personal  history.  A  few  of  them  only  may  be  mentioned. 

It  was  on  his  visit  to  Virginia,  towards  the  end  of  1779, 
that  he  met  at  Yorktown  the  beautiful  little  lady,  four 
teen  years  old,  who  became  his  wife  three  years  later, 
and  who  was  to  be  the  mother  of  his  ten  children,1  and 
to  receive  from  him  the  tenderest  devotion  until  the  day 
of  her  death,  in  1831.  Some  letters  of  her  older  sister, 
Mrs.  Carrington,  written  to  another  sister,  give  us  a 
glimpse  of  Captain  Marshall  in  his  twenty-fifth  year. 
These  ladies  were  the  daughters  of  Jaquelin  Ambler, 
Treasurer  of  the  Colony,  living  next  door  to  the  family 
of  Colonel  Marshall.  Their  mother  was  that  Rebecca 
Burwell  for  whom,  under  the  name  of  ."Belinda,"  Jeffer 
son  had  languished,  in  his  youthful  correspondence  of , 

1  Only  six  of  his  children  grew  to  full  age. 


John  Marshall  Memorial.  214 

some  twenty  years  before.  The  girls  had  the  highest 
expectations  when  they  heard  that  Captain  Marshall  was 
coming  home  from  the  war.  They  were  to  meet  him  first 
at  a  ball,  and  were  contending  for  the  prize  beforehand. 
Mary,  the  youngest,  carried  it  off.  "  At  the  first  intro 
duction,"  writes  her  sister,  who  was  but  one  year  older, 
"  he  became  devoted  to  her.  For  my  own  part,"  she 
adds,  "  I  felt  not  the  smallest  wish  to  contest  the  prize 
with  her.  .  .  .  She,  with  a  glance,  divined  his  char 
acter,  .  .  .  while  I,  expecting  an  Adonis,  lost  all  de 
sire  of  becoming  agreeable  in  his  eyes  when  I  beheld  his 
awkward,  unpolished  manner  and  total  negligence  of  per 
son.  How  trivial  now  seem  all  such  objections,"  she 
adds,  writing  in  1810.  "  His  exemplary  tenderness  to  our 
unfortunate  sister  is  without  parallel."  She  had  early 
become  subject  to  a  nervous  affection,  that  lasted  all  her 
life.  "  But  this,"  it  is  added,  "  has  only  seemed  to  increase 
his  care  and  tenderness,  and  he  is,  as  you  know,  as  entirely 
devoted  as  at  the  moment  of  their  first  being  married. 
Always,  and  under  every  circumstance  an  enthusiast  in 
love,  I  have  heard  him  declare  that  he  looked  with  aston 
ishment  at  the  present  race  of  lovers,  so  totally  unlike 
what  he  had  been  himself.  His  never- failing  cheerfulness 
and  good  humor  are  a  perpetual  source  of  delight  to  all 
connected  with  him,  and  .  .  .  have  been  the  means 
of  prolonging  the  life  of  her  he  is  so  tenderly  devoted  to." 

"  He  was  her  devoted  lover  to  the  very  end  of  her  life," 
another  member  of  his  family  has  said.  And  Judge  Story, 
in  speaking  of  him  after  his  wife's  death,  described  him 
as  "  the  most  extraordinary  man  I  ever  saw  for  the  depth 
and  tenderness  of  his  feelings." 

A  little  touch  of  his  manner  to  his  wife  is  seen  in  a  let 
ter  written  to  her  from  the  city  of  Washington,  on  Feb- 


215  Massachusetts —  Address  of  Professor  Thayer. 

ruary  23,  1825,  in  his  seventieth  year.  He  had  had  an 
injury  to  his  knee,  about  which  Mrs.  Marshall  was  anxious. 
"I  shall  be  out,"  he  writes,  "in  a  few  days.  All  the 
ladies  of  the  secretaries  have  been  to  see  me;  some  more 
than  once,  and  have  brought  me  more  jelly  than  I  could 
eat,  and  many  other  things.  I  thank  them  and  stick 
to  my  barley-broth.  Still  I  have  lots  of  time  on  my 
hands.  How  do  you  think  I  beguile  it  ?  I  am  almost 
tempted  to  leave  you  to  guess  until  I  write  again.  You 
must  know  I  begin  with  the  ball  at  York,  our  splendid 
Assembly  in  the  Palace  in  Williamsburg,  my  visit  to 
Eichmond  for  a  fortnight,  my  return  to  the  field,  and  the 
very  welcome  reception  you  gave  me  on  my  arrival  at 
Dover,  our  little  tiffs  and  makings-up,  my  feelings  when 
Major  Dick l  was  courting  you,  my  trip  to  the  Cottage 
[the  Ambler  home  in  Hanover  county,  where  the  mar 
riage  took  place],  the  thousand  little  incidents,  deeply 
affecting  in  turn."  This  was  the  ball  of  which  Mrs.  Car- 
rington  wrote;  and  of  the  "Assembly  at  the  Palace"  she 
also  gave  an  account,  remarking  that  "  Marshall  was  de 
voted  to  my  sister." 

After  his  marriage,  and  when  he  had  begun  practice 
at  Richmond,  he  still  retained  certain  simple  and  rustic 
ways,  brought  from  the  army  and  his  life  in  the  moun 
tain  region,  that  troubled  some  persons  at  Eichmond, 
whose  conception  of  greatness  was  associated  with  very 
different  models  of  dress  and  behavior.  "  He  was  one 
morning  strolling,"  we  are  told,  "  through  the  streets  of 
Eichmond,  attired  in  a  plain  linen  roundabout  and  shorts, 
with  his  hat  under  his  arm,  from  which  he  was  eating 
cherries,  when  he  stopped  in  the  porch  of  the  Eagle 
Hotel,  indulged  in  a  little  pleasantry  with  the  landlord, 

l  Richard  Anderson,  the  father  of  the  hero  of  Fort  Sumter. 


John  Marshall  Memorial.  216 

and  then  passed  on."  A  gentleman  from  the  country 
was  present  who  had  a  case  coming  on  before  the  Court 
of  Appeals,  and  was  referred  by  the  landlord  to  Marshall 
as  the  best  lawyer  to  employ.  But  "the  careless  and 
languid  air  "  of  Marshall  had  prejudiced  the  man,  and  he 
refused  to  employ  him.  The  clerk  of  the  court,  by  and 
by,  also  recommended  Marshall,  but  without  success. 
The  client  observed  in  court  an  elderly  lawyer  in  black, 
with  a  powdered  wig,  and  retained  him.  In  the  first 
case  this  man  and  Marshall  spoke  on  opposite  sides.  The 
gentleman  listened,  and  secured  Marshall  at  once ;  frankly 
telling  him  the  whole  story,  and  adding  that  of  the  hun 
dred  dollars  he  had  brought  to  pay  his  lawyer,  only  five 
were  left.  Marshall  good-naturedly  took  it  and  helped 
in  the  case. 

In  the  Virginia  Federal  Convention  of  1788,  at  the  age 
of  thirty-three,  he  is  described,  rising  after  Monroe  had 
spoken,  as  "  a  tall  young  man,  slovenly  dressed  in  loose 
summer  apparel.  .  .  .  His  manners," it  is  said,  "like 
those  of  Monroe,  were  in  strange  contrast  with  those  of 
Edmund  Kandolph  or  of  Grayson."  In  such  stories  as 
these,  one  is  reminded,  as  he  is  often  reminded,  of  a  re 
semblance  between  Marshall  and  Lincoln.  Very  different 
men  they  were,  but  both  thorough  Americans,  with  un- 
borrowed  character  and  manners,  and  a  lifelong  flavor 
derived  from  no  other  soil. 

In  those  efforts,  on  the  part  of  some  of  the  leaders  of 
Virginia  and  the  South,  early  in  the  century,  to  rid  them 
selves  of  slavery,  to  which  we  at  the  North  have  never 
done  sufficient  justice,  Marshall  took  an  active  part.  The 
American  Colonization  Society  was  organized  in  1816  or 
1817,  with  Bushrod  Washington  for  president.  In  1823 
an  auxiliary  society  was  organized  at  Kichmond,  of  which 


217  Massachusetts  —  Address  of  Professor  Thayer. 

Marshall  was  president,  an  office  which  he  held  nearly  or 
quite  up  to  the  time  of  his  death.  It  is  interesting  to 
observe  that  one  of  the  Virginia  plans  for  colonization 
was  to  have  worked  out  the  abolition  of  slavery  in  the 
year  1901. 

Of  slavery  Marshall  wrote  to  a  friend,  in  1826:  "I 
concur  with  you  in  thinking  that  nothing  portends  more 
calamity  and  mischief  to  the  Southern  States  than  their 
slave  population.  Yet,  they  seem  to  cherish  the  evil,  and 
to  view  with  immovable  prejudice  and  dislike  everything 
which  may  tend  to  diminish  it.  I  do  not  wonder  that 
they  should  resist  any  attempt,  should  one  be  made,  to 
interfere  with  the  rights  of  property,  but  they  have  a 
feverish  jealousy  of  measures  which  may  do  good  with 
out  the  hazard  of  harm,  that  I  think  very  unwise." 

We  often  hear  of  the  Chief  Justice  at  his  "  Quoit  Club." 
He  was  a  famous  player  at  quoits,  and  kept  it  up  all  his 
life.  Chester  Harding,  the  artist  who  painted  the  full- 
length  portrait  of  Marshall  that  hangs  in  the  Harvard 
Law  School,  tells  us  of  him  as  he  saw  him  at  the  Quoit 
Club  in  his  seventy-fifth  year.  Fortunately,  language 
did  not,  like  paint,  limit  the  artist  to  a  single  moment  of 
time;  he  gives  us  the  Chief  Justice  in  action.  The  club 
used  to  meet  every  week  in  a  grove,  about  a  mile  from 
the  city.  Harding  went  early.  "  I  watched,"  he  says, 
"  for  the  coming  of  'the  old  Chief.  He  soon  approached, 
with  his  coat  on  his  arm  and  his  hat  in  his  hand,  which 
he  was  using  as  a  fan.  He  walked  directly  up  to  a  large 
bowl  of  mint  julep,  which  had  been  prepared,  and  drank 
off  a  tumblerful  of  the  liquid,  smacked  his  lips,  and  then 
turned  to  the  company  with  a  cheerful  '  How  are  you, 
gentlemen  ? '  He  was  looked  upon  as  the  best  pitcher 
of  the  party,  and  could  throw  heavier  quoits  than  any 


John  Marshall  Memorial.  218 

other  member  of  the  club.  The  game  began  with  great 
animation.  There  were  several  ties;  and  before  long  I 
saw  the  great  Chief  Justice  of  the  United  States  down 
on  his  knees,  measuring  the  contested  distance  with  a 
straw,  with  as  much  earnestness  as  if  it  had  been  a  point 
of  law;  and  if  he  proved  to  be  in  the  right,  the  woods 
would  ring  with  his  triumphant  shout." 1 

An  entertaining  account  has  been  preserved  by  the 
late  Mr.  George  W.  Munford,  of  a  meeting  of  this  club, 
apparently  while  Marshall  was  still  at  the  bar,  at 
which  he  and  "Wickham,  a.  leading  Yirginia  lawyer,  one 
of  the  counsel  of  Aaron  Burr,  were  the  caterers.  At  the 
table  Marshall  announced  that  at  the  last  meeting  two 
members  had  introduced  politics,  a  forbidden  subject, 
and  had  been  fined  a  basket  of  champagne,  and  that  this 
was  now  produced  as  a  warning  to  evil-doers.  As  the 
club  seldom  drank  this  article,  they  had  no  champagne 
glasses,  and  must  drink  it  in  tumblers.  By  and  by,  the 
quoit  players  retired  for  a  game.  Most  of  the  members 
had  smooth,  polished  brass  quoits.  But  Marshall's  were 
iron, —  large,  rough,  and  heavy,  such  as  few  of  the  mem 
bers  could  throw  well  from  hub  to  hub.  Marshall  him 
self  threw  them  with  great  success  and  accuracy,  and 
often  "rang  the  meg."  On  this  occasion,  Marshall  and 
Parson  Blair  led  the  two  parties  of  players.  Marshall 
played  first,  and  "  rang  the  meg."  Parson  Blair  did  the 
same;  his  quoit  came  down  plumply  on  top  of  Marshall's. 

1  In  speaking  of  this  same  club,  another  writer  says:  "We  have 
seen  Mr.  Marshall,  .  .  .  when  he  was  Chief  Justice  of  the  United 
States,  on  his  hands  and  knees,  with  a  straw  and  a  penknife,  the 
blade  of  the  knife  stuck  through  the  straw,  holding  it  between  the 
edge  of  the  quoit  and  the  hub,  and  when  it  was  a  very  doubtful  ques 
tion,  pinching  or  biting  off  the  ends  of  the  straw,  until  it  would  tit 
to  a  hair." 


219  Massachusetts  —Address  of  Professor  Thayer. 

At  this  there  was  uproarious  applause,  which  drew  out  all 
the  others  from  the  dinner.  Then  came  an  animated  con 
troversy  as  to  what  should  be  the  effect  of  this  exploit. 
All  returned  to  the  table,  had  another  bottle  of  cham- 
pagne,and  listened  to  arguments,  one  from  Marshall, pro  se, 
and  one  from  Wickham,  for  Parson  Blair.  Marshall's  ar 
gument  is  a  humorous  companion-piece  to  any  of  his  elabo 
rate  judicial  opinions.  First  he  formulated  the  question: 
"  Who  is  winner  when  the  adversary  quoits  are  on  the 
meg  at  the  same  time  ?  "  Then  he  stated  the  facts,  and 
added  that  the  question  was  one  of  the  true  construction 
and  application  of  the  rules  of  the  game.  The  first  one 
ringing  the  meg,  he  argued,  has  the  advantage;  no  other 
can  succeed  who  does  not  begin  by  displacing  him.  The 
parson,  he  willingly  allowed,  deserves  to  rise  higher  and 
higher  in  everybody's  esteem;  but  then  he  must  not  doit 
by  getting  on  his  adversary's  back.  That  is  more  like 
leap-frog  than  quoits.  Again,  the  legal  maxim  is,  Cujus 
est  solum  ejus  est  usque  ad  coelum.  His  own  right,  as 
first  occupant,  extended  tb  the  vault  of  heaven.  No  op 
ponent  can  gain  any  advantage  by  squatting  on  his  back — 
he  must  either  bring  a  writ  of  ejectment,  or  drive  him 
out  vi  et  armis.  And  then,  after  further  argument  of  the 
same  sort,  he  asked  judgment;  and  sat  down,  amidst 
great  applause. 

Mr.  Wickham  then  rose  and  made  an  argument  of  a 
similar  pattern.  No  rule,  he  said,  requires  an  impossibil 
ity.  Mr.  Marshall's  quoit  is  twice  as  large  as  any  other ; 
and  yet  it  flies  from  his  arm  like  the  iron  ball,  at  the 
Grecian  games,  from  the  arm  of  Ajax.  It  is  an  iron 
quoit,  unpolished,  jagged,  and  of  enormous  weight.  It 
is  impossible  for  an  ordinary  quoit  to  move  it.  With 
much  more  of  the  same  sort,  he  contended  that  it  was  a 


John  Marshall  Memorial  220 

drawn  game.  After  animated  voting,  protracting  the 
uncertainty  as  long  as  possible,  it  was  so  decided.  On 
another  trial,  Marshall  clearly  won. 

Of  Marshall's  athletic  powers  when  he  was  young, 
President  Quincy  says  that  he  used  to  hear  them  cele 
brated  among  the  men  of  the  South  whom  he  met  in 
Washington  early  in  the  century.  They  said  that  he 
was  the  only  man  in  the  army  who  could  put  a  stick  on 
the  heads  of  two  persons  of  his  own  height  (six  feet)  and 
clear  it  at  a  running  jump.  He  was  famous  also  in  the 
foot-race;  and,  running  in  his  stocking  feet,  was  nick 
named  "  Silverheels  "  by  the  soldiers,  from  his  uniform 
success,  and  the  color  of  the  yarn  with  which  his  mother 
finished  off  his  blue  stockings  at  the  heel. 

Of  Marshall's  appearance  on  the  bench  we  have  a  pict 
ure  in  one  of  Story's  letters  from  Washington,  while  he 
was  at  the  bar.  He  is  writing  in  1808,  the  year  after  the 
Burr  trial  —  the  year  of  the  St.  Memin  portrait.  "Mar 
shall,"  he  says,  "  is  of  a  tall,  slender  figure,  not  graceful 
or  imposing,  but  erect  and  steady.  His  hair  is  black,  his 
eyes  small  and  twinkling,  his  forehead  rather  low.  His 
manners  are  plain  yet  dignified,  and  an  unaffected  mod 
esty  diffuses  itself  through  all  his  actions.  His  dress  is 
very  simple,  yet  neat.  I  love  his  laugh, —  it  is  too  hearty 
for  an  intriguer, —  and  his  good  temper  and  unwearied 
patience  are  equally  agreeable  on  the  bench  and  in  the 
study."  And  again,  Story  said  of  him  in  his  address  to 
the  Suffolk  bar,  after  his  death:  "  Upon  a  first  introduc 
tion  he  would  be  thought  to  be  cold  and  reserved;  but 
he  was  neither  the  one  nor  the  other.  It  was  simply  a 
habit  of  easy  taciturnity,  watching,  as  it  were,  his  own 
turn  to  follow  the  line  of  conversation,  and  not  to  pre 
sume  to  lead  it.  ...  He  had  great  simplicity  of 


221  Massachusetts  —  Address  of  Professor  Thayer. 

character,  manners,  dress,  and  deportment,  and  yet  with 
a  natural  dignity  that  suppressed  impertinence  and  si 
lenced  rudeness.  His  simplicity  had  an  exquisite  naivete 
which  charmed  every  one,  and  gave  a  sweetness  to  his 
familiar  conversation  approaching  to  fascination." 

In  the  autumn  of  1831,  Marshall  went  to  Philadelphia 
to  undergo  the  torture  of  the  operation  of  lithotomy,  be 
fore  the  days  of  ether.  It  was  the  last  operation  of  the 
distinguished  surgeon,  Dr.  Physick.  Another  eminent 
surgeon  who  assisted  him,  Dr.  Randall,  has  given  an  ac 
count  of  this  occasion.  After  speaking  of  the  danger  of 
the  operation  on  so  old  a  man,  he  adds  that  "  his  recov 
ery  was  in  a  great  degree  owing  to  his  extraordinary 
self-possession,  and  to  the  calm  and  philosophical  views 
which  he  took  of  his  case."  In  making  preparations,  Dr. 
Randall  visited  the  patient  about  nine  o'clock  in  the 
morning.  "Upon  entering  his  room,  I  found  him  en 
gaged  in  eating  his  breakfast.  He  received  me  with  a 
pleasant  smile  .  .  .  and  said, '  Well,  Doctor,  you  find 
me  taking  breakfast,  and  I  assure  you  I  have  had  a  good 
one.  I  thought  it  very  probable  that  this  might  be  my 
last  chance,  and  therefore  I  was  determined  to  enjoy  it 
and  eat  heartily.'  I  expressed  the  great  pleasure  which 
I  felt  at  seeing  him  so  cheerful,  and  said  that  I  hoped  all 
would  soon  be  happily  over.  He  replied  to  this  that  he 
did  not  feel  the  least  anxiety  or  uneasiness  respecting  the 
operation  or  its  results;  .  .  .  that  he  had  not  the 
slightest  desire  to  live,  laboring  under  the  sufferings  to 
which  he  was  then  subjected;  that  he  was  perfectly  ready 
to  take  all  the  chances  of  an  operation,  and  he  knew  there, 
were  many  against  him;  and  that  if  he  could  be  relieved 
by  it  he  was  willing  to  live  out  his  appointed  time,  but  if 


John  Marshall  Memorial.  222 

not,  would  rather  die  than  hold  existence  accompanied 
with  the  pain  and  misery  which  he  then  endured. 

"After  he  finished  his  breakfast  I  administered  to  him 
some  medicine;  he  then  inquired  at  what  hour  the  opera 
tion  would  be  performed.  I  mentioned  the  hour  of  eleven. 
He  said,  '  Yery  well;  do  you  wish  me  now  for  any  other 
purpose,  or  may  I  lie  down  and  go  to  sleep  ? '  I  was  a 
good  deal  surprised  at  this  question,  but  told  him  that  if 
he  could  sleep  it  would  be  very  desirable.  He  immedi 
ately  placed  himself  upon  the  bed  and  fell  into  a  pro 
found  sleep,  and  continued  so  until  I  was  obliged  to 
rouse  him  in  order  to  undergo  the  operation.  He  exhib 
ited  the  same  fortitude,  scarcely  uttering  a  murmur, 
throughout  the  whole  procedure,  which,  from  the  pecul 
iar  nature  of  his  complaint,  were  necessarily  tedious." 
From  the  patient  over  a  thousand  calculi  were  taken; 
he  had  a  perfect  recovery;  nor  did  the  disorder  ever 
return. 

It  was  at  this  period,  in  1831  and  1832,  that  Inman's 
fine  portrait  of  him,  now  hanging  in  the  rooms  of  the 
Law  Association  of  Philadelphia,  was  taken  for  the  bar 
of  that  city.  A  replica  is  on  the  walls  of  the  State 
Library  in  Richmond,  which  Marshall  himself  bought  for 
his  only  daughter.  This  portrait  is  regarded  as  the  best 
that  was  ever  taken  of  him  in  his  later  life.  Certainly 
it  best  answers  the  description  of  him  by  an  English 
traveler,  who  saw  him  in  the  spring  of  1835,  and  said 
that  "  the  venerable  dignity  of  his  appearance  would  not 
suffer  in  comparison  with  that  of  the  most  respected 
and  distinguished-looking  peer  in  the  British  House  of 
Lords." 

After  his  recovery  in  1831,  Marshall  seems  to  have 
been  in  good  health  down  to  the  early  part  of  1835, 


223  Massachusetts — Address  of  Professor  Thayer. 

Then,  we  are  told,  he  suffered  "  severe  contusions  " 1  in 
the  stage-coach  in  returning  from  Washington.  His 
health  now  rapidly  declined,  and  he  went  again  to  Phila 
delphia  for  relief,  where  he  died  on  July  6,  1835,  of  a 
serious  disorder  of  the  liver. 

He  missed  from  his  deathbed  his  eldest  son,  whom  he 
had  expected  and  asked  for;  and  he  never  learned  the 
pathetic  tragedy  which  you  may  read  now  on  the  grave 
stone  of  that  son  behind  the  old  house  at  Oakhill.  Thomas 
Marshall,  in  hastening  to  his  father  near  the  end  of  June, 
was  passing  through  the  streets  of  Baltimore,  when  he 
was  suddenly  killed  in  a  storm  by  the  blowing  down  of 
a  chimney. 

The  great  Chief  Justice  was  carried  home  with  every 
demonstration  of  respect  and  reverence,  and  was  buried 
by  the  side  of  his  wife  in  the  Shockoe  Hill  Cemetery  in 
Richmond.  There  to-day,  upon  horizontal  tablets,  are 
two  inscriptions  of  affecting  simplicity,  both  written  by 
himself.  The  first  runs  thus :  "  John  Marshall,  son  of 
Thomas  and  Mary  Marshall,  was  born  the  24th  of  Sep 
tember,  1755.  Intermarried  with  Mary  Willis  Ambler, 
the  3d  of  January,  1783.  Departed  this  life  the  [6th]  day 
of  July,  1835."  The  second  thus:  "Sacred  to  the  mem 
ory  of  Mrs.  Mary  Willis  Marshall,  Consort  of  John  Mar 
shall.  Born  the  13th  of  March,  1766.  Departed  this  life 
the  25th  of  December,  1831.  This  stone  is  devoted  to 

1  Many  a  "severe  contusion  "  must  he  have  suffered  in  those  prim 
itive  days,  from  upsets  and  joltings,  in  driving  every  year  between 
Richmond  and  Washington,  some  one  hundred  and  twenty  miles 
each  way;  from  Richmond  to  Raleigh  and  back,  in  attending  his 
North  Carolina  Circuit,  about  one  hundred  and  seventy-five  miles 
each  way;  and  between  Richmond  and  Oakhill,  his  country  place, 
every  summer,  about  one  hundred  miles  each  way. 


John  Marshall  Memorial.  224 

her  memory  by  him  who  best  knew  her  worth,  and  most 
deplores  her  loss." 

Marshall's  accession  to  the  bench  was  marked  by  an 
impressive  circumstance.  For  ten  years  or  more  he  alone 
gave  all  the  opinions  of  the  court  to  which  any  name  was 
attached,  except  where  the  case  came  up  from  his  own 
circuit,  or  where  for  any  reason  he  did  not  sit.  In  the 
very  few  cases  where  opinions  were  given  by  the  other 
justices,  they  were  given  in  the  old  way,  seriatim,  as  they 
were  usually  given  before  Marshall  came  in,  and  as  they 
were  given  in  contemporary  English  courts.  Whatever 
may  have  been  the  purpose  of  the  Chief  Justice  in  intro 
ducing  this  usage,  there  can  be  no  doubt  as  to  the  impres 
sion  it  was  calculated  to  produce.  It  seemed,  all  of  a 
sudden,  to  give  to  the  judicial  department  a  unity  like 
that  of  the  executive,  to  concentrate  the  whole  force  of 
that  department  in  its  chief,  and  to  reduce  the  side  jus 
tices  to  a  sort  of  cabinet  advisers.  In  the  very  few  early 
cases  where  there  was  expressed  dissent,  it  lost  much  of 
its  impressi veness  when  announced,  as  it  sometimes  was, 
by  the  mouth  that  gave  the  opinions  of  the  court. 

In  1812,  when  a  change  took  place,  the  court  had  been 
for  a  year  without  a  quorum.  Moreover,  Judge  Story 
had  just  come  to  the  bench,  a  man  of  quite  too  exuberant 
an  intellect  and  temperament  to  work  well  as  a  silent  side 
judge.  We  remark,  also,  at  the  beginning  of  that  term, 
that  the  Chief  Justice  was  not  in  attendance,  having,  as 
the  reporter  tells  us,  "  received  an  injury  by  the  over 
setting  of  the  stage-coach  on  his  journey  from  Kich- 
mond."  And  it  may  be  added  that  just  at  this  time  the 
anxious  prayer  of  Jefferson  was  answered,  and  a  majority 
of  the  judges  were  Eepublicans.  From  whatever  cause, 


225  Massachusetts  —  Address  of  Professor  Thayer. 

henceforward  there  was  a  change;  and,  without  return 
ing  to  the  old  habit  of  seriatim  opinions,  the  side  judges 
had  their  turn,  as  they  do  now. 

In  coming  to  consider  Marshall's  judicial  work,  as  be 
fore,  in  dealing  with  the  personal  side  of  him,  I  pass  over 
much  of  what  presses  to  be  said;  for  I  must  not,  on  this 
occasion,  transgress  materially  that  little  compass  of  an 
hour,  which  prudence,  and  usage,  and  the  convenience  of 
my  hearers,  on  this  busy  day,  prescribe.  A  few  things 
only  can  be  said,  and  these  such  as  are  not  too  technical 
and  detailed  to  be  quite  unfit  for  your  hearing  to-day. 

In  most  of  Marshall's  opinions,  one  observes  the  style 
and  the  special  touch  of  a  thoughtful  and  original  mind ; 
in  some  of  them  the  powers  of  a  great  mind  in  full  ac 
tivity.  His  opinions  relating  to  international  law,  as  I 
am  assured  by  those  competent  to  judge,  rank  with  the 
best  there  are  in  the  books.  As  regards  most  of  the  more 
familiar  titles  of  the  law,  it  would  be  too  much  to  claim 
for  him  the  very  first  rank.  In  that  region  he  is,  in 
many  respects,  equaled  or  surpassed  by  men  of  greater 
learning,  more  deeply  saturated  with  the  technicalities 
of  the  law,  with  that  "artificial  perfection  of  reason  "of 
which  Coke  used  to  talk,  as  surpassing  so  much  the  rea 
son  of  any  one  man, —  men  such  as  Story,  Kent,  or  Shaw, 
or  the  reformer  Mansfield,  whom  Marshall  greatly  ad 
mired,  Eldon,  Westbury,  or  Blackburn.  But  in  the  field 
of  constitutional  law,  and  especially  in  one  department 
of  it,  that  relating  to  the  National  Constitution,  he  was 
pre-eminent, —  first,  with  no  one  second.  It  is  hardly 
possible,  as  regards  this  part  of  the  law,  to  say  too  much 
of  the  service  he  rendered  to  his  country.  Sitting  in  the 
highest  judicial  place  for  more  than  a  generation ;  famil- 
VOL.  1  —  15 


John  Marshall  Memorial.  226 

iar  from  the  beginning  with  the  Federal  Constitution, 
with  the  purposes  of  its  framers,  and  with  all  the  objec 
tions  of  its  critics;  accustomed  to  meet  these  objections 
from  the  time  he  had  served  in  the  Virginia  Convention 
of  1788;  convinced  of  the  purpose  and  capacity  of  this 
instrument  to  create  a  strong  nation,  one  competent  to 
make  itself  respected  at  home  and  abroad,  and  able  to 
speak  with  the  voice  and  to  strike  with  the  strength  of 
all;  assured  that  this  was  the  paramount  necessity  of  the 
country,  and  that  the  great  source  of  danger  was  in  the 
jealousies  and  adverse  interests  of  the  States, —  Marshall 
acted  on  his  convictions.  He  determined  to  give  full  ef 
fect  to  all  the  affirmative  contributions  of  power  that  went 
to  make  up  a  great  and  efficient  National  Government; 
and  fully,  also,  to  enforce  the  national  restraints  and  pro 
hibitions  upon  the  States.  In  both  cases  he  included  not 
only  the  powers  expressed  in  the  Constitution,  but  those 
also  which  should  be  found,  as  time  unfolded,  to  be 
fairly  and  clearly  implied  in  the  objects  for  which  the 
Federal  Government  was  established.  In  that  long  ju 
dicial  life  with  which  Providence  blessed  him,  and  blessed 
his  country,  he  was  able  to  lay  down,  in  a  succession  of 
cases,  the  fundamental  considerations  which  fix  and  gov 
ern  the  relative  functions  of  the  Nation  and  the  States, 
so  plainly,  with  such  fullness,  such  simplicity  and  strength 
of  argument,  such  a  candid  allowance  for  all  that  was  to 
be  said  upon  the  other  side,  in  a  tone  so  removed  from 
controversial  bitterness,  so  natural  and  fit  for  a  great 
man  addressing  the  "serene  reason"  of  mankind, —  as 
to  commend  these  things  to  the  minds  of  his  countrymen, 
and  firmly  to  fix  them  in  the  jurisprudence  of  the  nation; 
so  that  "  when  the  rain  descended  and  the  floods  came, 


J 


227  Massachusetts  —  Address  of  Professor  Tfyayer. 

and  the  winds  blew  and  beat  upon  that  house,  it  fell  not, 
because  it  was  founded  upon  a  rock." 

It  was  Marshall's  strong  constitutional  doctrine,  ex 
plained  in  detail,  elaborated,  powerfully  argued,  over  and 
over  again,  with  unsurpassable  earnestness  and  force 
placed  permanently  in  our  judicial  records,  holding  its 
own  during  the  long  emergence  of  a  feebler  political 
theory,  and  showing  itself  in  all  its  majesty  when  war 
and  civil  dissension  came, —  it  was  largely  this  that  saved 
the  country  from  succumbing,  in  the  great  struggle  of 
forty  years  ago,  and  kept  our  political  fabric  from  going 
to  pieces.  I  do  not  forget  our  own  Webster,  or  others,  in 
saying  that  to  Marshall  (if  we  may  use  his  own  phrase 
about  Washington),  "  more  than  to  any  other  individual, 
and  as  much  as  to  one  individual  was  possible,"  do  we 
owe  that  prevalence  of  sound  constitutional  opinion  and 
doctrine  that  held  the  Union  together;  to  that  combina 
tion  in  him,  of  a  great  statesman's  sagacity,  a  great  law 
yer's  lucid  exposition  and  persuasive  reasoning,  a  great 
man's  candor  and  breadth  of  view,  and  that  judicial  au 
thority  on  the  bench,  allowed  naturally  and  as  of  right 
to  a  large,  sweet  nature,  which  all  men  loved  and  trusted, 
and  capable  of  harmonizing  differences  and  securing  the 
largest  possible  amount  of  co-operation  among  discordant 
associates.  In  a  very  great  degree,  it  was  Marshall,  and 
these  things  in  him,  that  have  wrought  out  for  us  a  strong 
and  great  nation,  one  that  men  can  love  and  die  for;  that 
"  mother  of  a  mighty  race,"  which  stirred  the  soul  of 
Bryant  half  a  century  ago,  as  he  dreamed  how, 

"  The  thronging  years  in  glory  rise, 

And  as  they  fleet. 
Drop  strength  and  riches  at  thy  feet; " 


John  Marshall  Memorial.  228 

the  nation  whose  image  flamed  in  the  heart  of  Lowell,  a 
generation  since,  as  he  greeted  her  coming  up  out  of  the 
Valley  of  the  Shadow  of  Death : 

"  Oh  Beautiful,  my  country,  ours  once  more  !  .  .  . 
Among  the  nations  bright  beyond  compare  !  .  .  . 
What  were  our  lives  without  thee  ? 
What  all  our  lives  to  save  thee  ? 
We  reck  not  what  we  gave  thee, 
We  will  not  dare  to  doubt  thee, 
But  ask  whatever  else,  and  we  will  dare  !  " 

It  fell,  for  the  first  time,  to  the  Supreme  Court,  early 
in  Marshall's  day,  to  take  the  grave  step  of  disregarding 
an  Act  of  Congress, —  a  co-ordinate  department, —  which 
conflicted  with  the  National  Constitution.  Had  the  ques 
tion  related  to  a  conflict  between  that  Constitution  and 
the  enactment  of  a  State,  it  would  have  been  a  simpler 
matter.  These  two  questions,  under  European  written 
constitutions,  are  regarded  as  different  ones.  It  is  almost 
necessary  to  the  working  of  a  federal  system  that  the 
general  government,  and  any  of  its  departments,  should 
be  free  to  disregard  acts  of  any  department  of  the  local 
States  which  may  be  inconsistent  with  the  Federal  Con 
stitution.  And  so  in  Switzerland  and  Germany  the  fed 
eral  courts  thus  treat  local  enactments.  But  there  is  not, 
under  any  written  constitution  in  Europe,  a  country 
where  the  court  deals  in  this  way  with  the  act  of  its  co 
ordinate  legislature.  In  Germany,  at  one  time,  this  was 
done,  under  the  influence  of  a  study  of  our  law,  but  it 
was  soon  abandoned. 

I  must  omit,  very  reluctantly,  the  historical  consider 
ations  relating  to  this  great  question;  the  theory  and  the 
usage  under  our  colonial  charters,  which  prepared  our 
people  for  the  peculiar  doctrine  which  we  hold;  the  de 
bates  and  the  differences  of  opinion  about  it  in  our  early 


229  Massachusetts  —  Address  of  Professor  Thayer. 

conventions  and  elsewhere;  the  various  contrivances  for 
meeting  this  danger  of  unconstitutional  legislation  which 
were  discussed ;  the  early  practices  of  our  Federal  Ex 
ecutive  as  to  asking  opinions  of  the  judges,  and,  on  their 
part,  of  communicating  such  opinions,  informally  and 
privately,  to  the  Executive,  so  that  he  might  see  to  it 
that  the  fundamental  law  was  faithfully  executed ;  these 
and  other  such  matters  I  must,  at  present,  pass  by. 

It  was  in  1803,  when  Marshall  had  been  two  years 
Chief  Justice,  that  the  great  case  above  referred  to,  that 
of  Marbury  v.  Madison,  came  up  for  final  decision.  It 
has  been  said  in  high  quarters  that  there  were  earlier  de 
cisions  of  the  Supreme  Court  holding  an  Act  of  Congress 
unconstitutional;  but  nothing  yet  in  print  justifies  the 
statement.  This  was  the  first  case.  And  it  was  more 
than  half  a  century  before  such  a  decision  was  again 
rendered  by  this  court. 

Marbury  v.  Madison  was  a  remarkable  case,  (it  was 
intimately  connected  with  certain  executive  action  for 
which  Marshall,  as  Secretary  of  State,  was  partly  respon 
sible.  For  various  reasons,  the  case  must  have  excited  a 
peculiar  interest  in  his  mind.  Within  less  than  three 
weeks  before  the  end  of  Adams's  administration,  on  Feb 
ruary  13,  1801,  while  Marshall  was  both  Chief  Justice 
and  Secretary  of  State,  an  Act  of  Congress  had  abolished 
the  old  system  of  Circuit  and  District  Courts,  and  estab 
lished  a  new  one.  This  gave  to  the  President  the  ap 
pointment  of  many  new  judges,  and  kept  him  and  his 
secretary  busy,  during  the  last  hours  of  the  administra 
tion,  in  choosing  and  commissioning  the  new  officials. 
And  another  thing.  The  Supreme  Court  had  consisted 
heretofore  of  six  judges.  This  same  Act  provided  that 
.after  the  next  vacancy  on  the  bench,  there  should  be  five 


John  Marshall  Memorial.  230 

judges  only.  Such  arrangements  as  these,  made  by  a 
party  just  going  out  of  power,  were  not  ill  calculated  to 
create,  in  the  mind  of  a  party  coming  in,  the  impression 
of  an  intention  to  keep  control  of  the  judiciary  as  long 
as  possible.  There  were,  to  be  sure,  other  reasons  for 
some  of  this  action.  Several  judges  had  signified  to 
Washington,  in  1790,  the  opinion  that  the  Judiciary  Act 
of  1789  was  unconstitutional  in  making  them  judges  of 
the  Circuit  Court.  The  new  statute  corrected  that.  Yet 
in  regard  to  the  time  chosen  for  this  action,  it  was  ob 
servable  that  ten  years  and  more  had  been  suffered  to 
elapse  before  the  mischief  then  pointed  out  by  the  judges 
was  corrected.) 

Another  matter  relating  to  the  Supreme  Court  had 
been  dealt  with.  This  Act  of  February  13, 1801,  provided 
that  the  two  terms  of  the  court,  instead  of  being  held,  as 
hitherto,  in  February  and  August,  should  thereafter  be 
held  in  June  and  December.  Accordingly,  the  court  sat 
in  December,  1801.  It  adjourned,  as  it  imagined,  to  June, 
1802.  But  on  March  8th  of  that  year,  Congress,  under  the 
new  administration,  repealed  the  law  of  1801,  unseated 
all  the  new  judges,  and  reinstated  the  old  system,  with 
its  August  and  February  terms.  And  then,  a  little  later 
in  the  year,  the  August  term  of  the  court  was  abolished ; 
leaving  only  one  term  a  year,  to  begin  on  the  first  Mon 
day  in  February.  Thus,  since  the  June  term  was  abol 
ished,  and  February  had  then  passed,  and  there  was  no 
longer  a  December  or  an  August  term,  the  court  found 
itself,  in  effect,  adjourned  by  Congress  from  December, 
1801,  to  February,  1803;  and  it  had  no  session  at  all  dur 
ing  the  whole  of  the  year  1802. 

If  the  legislation  of  1801  was  calculated  to  show  the 
importance  attached  by  an  outgoing  political  party  to 


231  Massachusetts  —  Address  of  Professor 

control  over  the  judiciary,  that  of  1802  was  well  adapted 
to  show  how  entirely  the  incoming  party  agreed  with 
them  and  how  well  inclined  they  were  to  profit  by  their 
own  opportunities.  How  was  it,  meantime,  with  the  ju 
diciary  itself?  Unfortunately,  the  Supreme  Court  had 
already  been  drawn  into  the  quarrel.  For,  at  the  single 
December  term,  in  1801,  held  under  the  statute  of  that 
year,  an  application  had  been  made  to  the  court  by  four 
persons  in  the  District  of  Columbia,  for  a  rule  upon  James 
Madison,  Secretary  of  State,  to  show  cause  why  a  writ  of 
mandamus  should  not  issue  requiring  him  to  deliver  to 
these  persons  certain  commissions  as  Justice  of  the  Peace, 
which  had  been  left  in  Marshall's  office,  undelivered,  at 
the  time  when  he  ceased  to  add  to  his  present  functions 
those  of  Secretary  of  State.  They  had  been  made  out, 
sealed,  and  signed,  and  were  supposed  to  have  been  found 
by  Madison  when  he  came  into  office,  and  to  be  now  with 
held  by  him.  This  motion  was  pending  when  the  court 
adjourned,  in  December,  1801.  Of  course,  such  a  motion 
as  that, —  for  a  mandamus  to  the  head  of  the  Cabinet, — 
must  have  attracted  no  little  attention  on  the  part  of  the 
new  administration  and  its  supporters.  Abolishing  the 
August  term  postponed  any  early  action  by  the  court ;  and 
was  calculated  to  remind  the  judiciary  very  forcibly  of 
the  power  of  the  Legislature.  At  last  the  court  came 
together,  in  February,  1803,  and  found  the  mandamus  case 
awaiting  its  action.  It  is  the  first  one  reported  at  that 
term.  Since  Marshall  had  taken  his  seat,  there  had  been 
only  five  reported  cases  before  this  one.  The  opinions  had 
all  been  given  by  Marshall  himself  unless  a  few  lines  "  by 
the  court"  may  be  an  exception;  and  according  to  the 
new  custom  by  which  the  Chief  Justice  became,  wher 
ever  it  was  possible,  the  sole  organ  of  the  court,  Marshall 


John  Marshall  Memorial.  232 

now  gave  the  opinion  in  Marbury  v.  Madison.  It  may 
reasonably  be  wondered  that  he  should  have  been  willing 
to  give  the  opinion  in  such  a  case ;  and  especially  that  he 
should  have  handled  the  case  as  he  did.  But  he  was 
sometimes  curiously  regardless  of  conventions. 

What  was  decided  in  Marbury  v.  Madison,  and  all  that 
was  decided,  was  that  the  court  had  no  jurisdiction ;  and 
that  a  statute  purporting  to  confer  on  it  power  to  issue 
a  writ  of  mandamus  in  the  exercise  of  original  jurisdic 
tion  was  unconstitutional.  It  is  the  decision  upon  this 
point  that  makes  the  case  famous;  and  undoubtedly  it 
was  reached  in  the  legitimate  exercise  of  the  court's 
power.  But,  unfortunately,  instead  of  proceeding  in  the 
usual  way,  the  opinion  began  by  passing  upon  all  the  points 
which  the  denial  of  its  own  jurisdiction  took  from  it  the 
right  to  treat.  It  was  thus  elaborately  laid  down,  in 
about  twenty  pages,  out  of  the  total  twenty-seven  which 
comprise  the  opinion,  that  Madison  had  no  right  to  detain 
the  commissions  which  Marshall  had  left  in  his  office; 
and  that  mandamus  would  be  the  proper  remedy  in  any 
court  which  had  jurisdiction  to  grant  it. 

Thus,  as  the  court,  by  its  decision,  was  reminding  the 
Legislature  of  its  limitations,  so  also,  and  by  this  irreg 
ular  method,  it  intimated  to  the  Executive  department 
its  amenability  to  judicial  control;  and  two  birds  were 
neatly  reached  with  the  same  stone.  Marshall  made  a 
very  noticeable  remark  in  this  opinion,  seeming  to  point 
to  the  Chief  Executive  himself,  and  not  merely  to  his 
Secretary,  when  he  said,  "  It  is  not  the  office  of  the  per 
son  to  whom  the  writ  is  directed,  but  the  nature  of  the 
thing  to  be  done,  by  which  the  propriety  or  impropriety 
of  issuing  the  mandamus  is  to  be  determined," — a  hint 


233  Massachusetts  —  Address  of  Professor  Tfyayer. 

that  on  an  appropriate  occasion  the  judiciary  might  issue 
its  orders  personally  to  him.  This  remark  gets  illustra 
tion  by  what  happened  a  few  years  later,  in  180Y,  when 
the -Chief  Justice,  at  the  trial  of  Aaron  Burr  in  Rich 
mond,  ordered  a  subpoena  to  the  same  President,  Thomas 
Jefferson,  directing  him  to  bring  thither  certain  docu 
ments.  It  was  a  strange  conception  of  the  relations  of 
the  different  departments  of  the  Government  to  each 
other,  to  imagine  that  an  order,  with  a  penalty,  was  a 
legitimate  judicial  mode  of  addressing  the  Chief  Execu 
tive.  On  Jefferson's  part  this  order  was  received  with 
the  utmost  discontent.  He  had  a  serious  apprehension 
of  a  purpose  to  arrest  him  by  force,  and  was  prepared  to 
protect  himself.  Meantime  he  sent  to  the  United  States 
Attorney  at  Eichmond  the  papers  called  for;  but  ex 
plained,  with  dignity,  that  while  the  Executive  was 
willing  to  testify  in  Washington,  it  could  not  allow  itself 
to  be  "  withdrawn  from  its  station  by  any  co-ordinate 
authority." 

It  was  partly  to  the  same  tendency  on  Marshall's  part,- 
already  mentioned,  to  give  little  thought  to  ordinary 
conventions,  and  partly  to  his  kindness  of  heart,  that  we 
should  attribute  another  singular  occurrence,  the  fact 
that  he  attended  a  dinner  at  the  house  of  an  old  friend, 
Wickham,  one  of  Burr's  counsel,  when  he  knew  that 
Burr  was  to  be  present;  and  when  that  individual,  hav 
ing  previously  been  brought  to  Richmond  under  arrest, 
examined  before  Marshall  and  admitted  to  bail,  was  still 
awaiting  the  action  of  the  grand  jury  with  reference  to 
further  judicial  proceedings  before  Marshall  himself. 
Marshall  had  accepted  the  invitation  before  he  knew 
that  Burr  was  to  be  of  the  company.  I  have  been  in 
formed  by  one  of  his  descendants  that  his  wife  advised 


John  Marshall  Memorial.  234 

him  not  to  go ;  but  he  thought  it  best  not  to  seem  too 
fastidious,  or  to  appear  to  censure  his  friend,  by  staying 
away.  It  is  said  that  he  sat  at  the  opposite  end  of  the 
table,  had  no  communication  with  Burr,  and  went  away 
early.  But  we  must  still  wonder  at  his  action;  and  he 
himself,  it  is  said,  afterwards  much  regretted  it. 

(  Marshall's  leading  constitutional  opinions  may  be  di 
vided  into  three  classes :  yj[irst,  such  as  discuss  the  general 
character  and  reach  of  the  Federal  Constitution,  and  the 
relation  of  the  Federal  Government  to  the  States.  Of  this 
class,  McCulloch  v.  Maryland,  probably  his  greatest  opin 
ion,  is  the  chief  illustration.  Second,  those  cases  which 
are  concerned  with  the  specific  restraints  and  limitations 
upon  the  States,  imposed  by  the  Federal  Constitution.  To 
this  class  may  be  assigned  Fletcher  v.  Peck,  the  bank 
ruptcy  cases  of  Sturges  v.  Crowninshield  and  Ogden  v. 
Saunders,  and  Dartmouth  College  v.  Woodward.  Third, 
such  as  deal  with  the  general  theory  and  principles  of 
constitutional  law.  There  is  little  of  this  sort.  Except 
as  it  is  incidentally  touched,  perhaps  the  only  case  is 
Marbury  v.  Madison.) 

I  cannot  now  speak  of  these  cases  in  detail ;  only  on  one 
or  two  of  them  is  there  time  to  comment  at  all.  If  we 
regard  at  once  the  greatness  of  the  questions  at  issue  in 
the  particular  case,  the  influence  of  the  opinion,  and  the 
large  method  and  clear  and  skilful  manner  in  which  it  is 
worked  out,  there  is  nothing  so  fine  as  the  opinion  in  Mc 
Culloch  v.  Maryland.  The  questions  were,  first,  whether 
the  United  States  could  constitutionally  incorporate  a 
bank;  and  second,  if  it  could,  whether  a  State  might  tax 
the  operations  of  the  bank ;  as,  in  this  instance,  by  requir 
ing  it  to  use  stamped  paper  for  its  notes.  The  bank  was 


235  Massachusetts  —  Address  of  Professor  Thayer. 

sustained  and  the  tax  condemned.  In  working  this  out, 
it  was  laid  down  that  while  the  United  States  is  merely 
a  government  of  enumerated  powers,  and  these  do  not  in 
terms  include  the  granting  of  an  incorporation,  yet  it  is 
a  government  whose  powers,  though  limited  in  number, 
are,  in  general,  supreme,  and  also  adequate  to  the  great 
national  purposes  for  which  they  are  given ;  that  these 
great  purposes  carry  with  them  the  power  of  adopting 
such  means,  not  prohibited  by  the  Constitution,  as  are 
fairly  conducive  to  the  end;  and  that  incorporating  a 
bank  is  not  forbidden,  and  is  useful  for  several  ends. 
Further,  the  paramount  relation  of  the  National  Govern 
ment,  whose  valid  laws  the  Constitution  makes  the  su 
preme  law  of  the  land,  forbids  the  States  to  tax  or  to 
"  retard,  impede,  burden  or  in  any  manner  control "  the 
operations  of  the  Government  in  any  of  its  instrumen 
talities.  The  opinion  was  that  of  a  unanimous  court,  in 
which  five  out  of  the  seven  judges  had  been  nominated 
by  a  Republican  President. 

As  regards  the  third  class  of  cases  mentioned  just  now, 
that  which  deals  with  the  fundamental  conceptions  and 
theory  of  our  American  doctrine  of  constitutional  law, 
Marbury  v.  Madison,  as  I  said,  is  the  chief  case.  I  have 
purposely  delayed  until  this  point  any  reference  to  this 
aspect  of  the  case.  While  this,  historically,  is  what  gives 
the  case  its  chief  importance,  yet  it  occupies  only  about 
a  quarter  of  the  opinion.  In  outline,  the  argument  is  as 
follows:  The  question  is  whether  a  court  can  give  effect 
to  an  unconstitutional  act  of  the  Legislature.  This  is 
answered,  as  having  little  difficulty,  by  referring  to  a 
few  "principles  long  and  well  established."  1.  The  peo 
ple,  in  establishing  a  written  Constitution  and  limiting 
the  powers  of  the  Legislature,  intend  to  control  it;  else 


John  Marshall  Memorial.  236 

the  Legislature  could  change  the  Constitution  by  an  or 
dinary  act.  2.  If  a  superior  law  is  not  thus  changeable, 
then  an  unconstitutional  act  is  not  law.  This  theory,  it 
is  added,  is  essentially  attached  to  a  written  constitution. 
3.  If  the  act  is  void,  it  cannot  bind  the  court.  The  court 
has  to  say  what  the  law  is,  and  in  saying  this  must  judge 
between  the  Constitution  and  the  act.  Otherwise,  a  void 
act  would  be  obligatory;  and  this  would  be  saying  that 
constitutional  limits  upon  legislation  may  be  transgressed 
by  the  Legislature  at  pleasure,  and  thus  these  limits 
would  be  reduced  to  nothing.  4.  The  language  of  the 
instrument  gives  judicial  power  in  "  cases  arising  under 
the  Constitution."  Judges  are  thus  in  terms  referred  to 
the  Constitution;  they  are  required  by  the  Constitution 
to  be  sworn  to  support  it,  and  cannot  violate  it.  And  so, 
it  is  said  in  conclusion,  the  peculiar  phraseology  of  the 
instrument  confirms  what  is  supposed  to  be  essential  to 
all  written  constitutions,  that  a  law  repugnant  to  it  is 
void,  and  that  the  courts,  as  well  as  other  departments, 
are  bound  by  it. 

This  reasoning  is  mainly  that  of  Hamilton,  in  his  short 
essay  of  a  few  years  before,  in  the  "  Federalist."  It  an 
swered  the  purpose  of  the  case  in  hand ;  but  this  short 
and  dry  treatment  of  the  subject,  as  being  one  of  no  real 
difficulty,  is  in  sharp  contrast  with  the  protracted  reason 
ing  of  McCulloch  v.  Maryland,  Cohens  v.  Virginia,  and 
other  great  cases;  and  it  is  much  to  be  regretted.  Ab 
solutely  settled  as  the  general  doctrine  is  to-day,  and 
sound  as  it  is  when  regarded  as  a  doctrine  for  the  de 
scendants  of  British  colonists,  there  are  grave  and  far- 
reaching  considerations,  not  touched  by  Marshall,  which 
affect  to-day  the  proper  administration  of  this  extremely 
important  power,  and  must  have  commanded  his  atten- 


237  Massachusetts  —  Address  of  Professor  Tfyayer. 

tion,  if  the  subject  had  been  deeply  considered  and  fully 
expounded.  His  reasoning  does  not  answer  the  difficul 
ties  that  troubled  Swift,  afterwards  Chief  Justice  of 
Connecticut,  and  Gibson,  afterwards  Chief  Justice  of 
Pennsj7lvania,  and  many  another  strong  man ;  not  to  men 
tion  Jefferson's  familiar  and  often  ill-digested  objections. 
It  assumes  as  an  essential  feature  of  a  written  constitu 
tion  what  does  not  exist  in  any  one  of  the  written  con 
stitutions  of  Europe.  It  does  not  remark  the  grave 
distinction  between  the  power  of  a  Federal  court  in  dis 
regarding  the  acts  of  a  co-ordinate  department,  and  in 
dealing  thus  with  the  legislation  of  the  local  states;  a 
distinction  important  in  itself,  and  observed  under  the 
written  constitutions  of  Europe,  which,  as  1  have  said, 
allow  this  power  in  the  last  sort  of  case,  while  denying 
it  in  the  other. 

Had  Marshall  dealt  with  this  subject  after  the  fashion 
of  his  greatest  opinions,  he  must  also  have  passed  upon 
certain  serious  suggestions  arising  out  of  the  arrange 
ments  of  our  own  constitutions  and  the  exigencies  of  the 
other  departments.  All  the  departments,  and  not  merely 
the  courts,  are  sworn  to  support  the  Constitution.  All 
are  bound  to  decide  for  themselves,  in  the  first  instance, 
what  this  instrument  requires  of  them.  None  can  have 
help  from  the  courts  unless,  in  course  of  time,  some  liti 
gated  case  should  arise;  and  of  some  questions  it  is  true 
that  they  never  can  arise  in  the  way  of  litigation.  What 
was  Andrew  Johnson  to  do  when  the  Eeconstruction 
Acts  in  1867  had  been  passed  over  his  veto  by  the  con 
stitutional  majority,  while  his  veto  had  gone  on  the  ex 
press  ground  that  they  were  unconstitutional  ?  He  had 
sworn  to  support  the  Constitution.  Should  he  put  in 
force  a  law  which  was  contrary  to  the  Constitution,  or 


John  Marshall  Memorial.  238 

should  he  say,  as  he  did  say  to  the  court,  through  his 
Attorney-General, "  I  recognize  no  duty  now  except  faith 
fully  to  carry  out  and  execute  the  law  ? "  And  why  is 
he  to  say  this  ? 

Again,  what  is  the  House  of  Eepresentatives  to  do 
when  a  treaty  duly  made  and  ratified  by  the  constitu 
tional  authority,  namely,  the  President  and  Senate,  comes 
before  it  for  an  appropriation  of  money  to  carry  it  out  ? 
Has  the  House,  under  these  circumstances,  anything  to 
do  with  the  question  of  constitutionality  ?  If  it  thinks 
the  treaty  unconstitutional,  can  it  vote  to  carry  it  out  ? 
If  it  can,  how  is  this  justified  ? 

Is  the  situation  necessarily  different  when  a  court  is 
asked  to  enforce  a  legislative  act  ?  The  courts  are  not 
strangers  to  the  case  of  political  questions,  where  they 
refuse  to  interfere  with  the  action  of  the  other  depart 
ments,  as  in  the  case  relating  to  Andrew  Johnson  just 
referred  to;  and  to  the  need  of  dealing  with  what  are 
construed  to  be  merely  directory  provisions  of  the  Con 
stitution;  and  to  the  cases,  well  approved  in  the  Supreme 
Court  of  the  United  States,  where  they  refuse  to  consider 
whether  provisions  of  the  Constitution  have  been  com 
plied  with,  requiring  certain  formalities  in  passing  laws, — 
and  where  they  accept  as  final  the  certificate  of  the  offi 
cers  of  the  political  departments.  A  question,  passed 
upon  by  those  departments,  is  thus  refused  any  discussion 
in  the  judicial  forum  on  the  ground,  to  quote  the  lan 
guage  of  the  Supreme  Court,  that  "  the  respect  due  to 
co-equal  and  independent  departments  requires  the  judi 
cial  department  to  act  upon  this  assurance." 

So  far  as  any  necessary  conclusion  is  concerned,  it  might 
fairly  have  been  said  with  us,  as  it  is  said  in  Europe,  that 
the  real  question  in  all  these  cases  is  not  whether  the  act 


239  Massachusetts  —  Address  of  Professor  Ttyxyer. 

is  constitutional,  but  whether  its  constitutionality  can 
properly  be  brought  in  question  before  a  given  tribunal. 

I  have  drawn  your  attention  to  the  immense  services 
that  Chief  Justice  Marshall  rendered  to  his  country  in 
the  field  of  constitutional  law,  and  have  considered  a  few 
of  the  cases. 

Since  his  time  not  twice  the  length  of  his  term  of 
thirty-four  years  has  gone  by,  but  five  times  the  number 
of  volumes  that  sufficed  for  the  opinions  of  the  Supreme 
Court  during  his  period  will  not  hold  those  of  his  succes 
sors  on  that  bench.  Nor  does  even  that  proportion  ap 
proximate  the  increase  in  the  quantity  of  the  court's 
business  which  is  referable  to  this  particular  part  of  the 
law.  This  has  enormously  increased.  When  one  reflects 
upon  the  multitude,  variety,  and  complexity  of  questions 
relating  to  the  regulation  of  interstate  commerce ;  upon 
the  portentous  and  ever-increasing  flood  of  litigation  to 
which  the  Fourteenth  Amendment  has  given  rise ;  upon 
the  new  problems  in  business,  government,  and  police 
which  have  come  in  with  steam  and  electricity,  and  their 
ten  thousand  applications;  upon  the  growth  of  corpora 
tions  and  of  wealth;  the  changes  of  opinion  on  social 
questions,  such  as  the  relations  of  capital  and  labor;  and 
upon  the  recent  expansions  of  our  control  over  great  and 
distant  islands,  we  seem  to  be  living  in  a  different  world 
from  Marshall's.  Under  these  strange,  new  circum 
stances  what  is  happening  in  the  region  of  constitutional 
law  ?  Yery  serious  things  indeed. 

The  people  of  the  States,  in  making  new  constitutions, 
have  long  been  adding  more  and  more  prohibitions  and 
restraints  upon  their  Legislatures.  The  courts,  mean 
time,  often  enter  into  the  harvest  thus  provided  for  them 


John  Marshall  Memorial.  240 

with  a  light  heart,  and  promptly  and  easily  proceed  to 
set  aside  acts  of  the  Legislatures.  The  Legislatures  grow 
accustomed  to  this  distrust,  and  more  and  more  readily 
incline  to  justify  it,  and  to  shed  all  consideration  of  con 
stitutional  restraints, —  as  concerning  the  exact  extent  of 
these  restraints, —  turning  that  subject  over  to  the  courts ; 
and,  what  is  worse,  they  fall  into  a  habit  of  assuming  that 
whatever  they  can  constitutionally  do,  they  may  do, —  as 
if  honor  and  fair  dealing  and  common  honesty  were  not 
relevant  to  their  inquiries.  The  people  all  this  while 
grow  careless  as  to  whom  they  send  to  the  Legislature; 
they  cheerfully  vote  for  men  whom  they  would  not  trust 
with  an  important  private  affair,  and  if  these  unfit  persons 
pass  foolish  and  bad  laws,  and  the  courts  step  in  and 
freely  disregard  them,  the  people  are  glad  that  these  few, 
wiser  gentlemen  on  the  bench,  are  there  to  protect  them 
against  their  more  immediate  representatives. 

From  these  causes  there  has  developed  a  vast  and  grow 
ing  increase  of  judicial  interference  with  legislation. 
This  is  a  very  different  state  of  things  from  what  our 
fathers  contemplated,  a  century  and  more  ago,  in  framing 
the  new  system.  Seldom,  indeed,  as  they  imagined, 
would  this  great,  novel,  tremendous  power  of  the  courts 
be  exerted, —  would  this  sacred  ark  of  the  covenant  be 
taken  from  within  the  veil.  Marshall  himself  expressed 
truly  one  aspect  of  the  matter,  when  he  said  in  one  of 
the  later  years  of  his  life,  "No  questions  can  be  brought 
before  a  judicial  tribunal  of  greater  delicacy  than  those 
which  involve  the  constitutional^  of  legislative  acts. 
If  they  become  indispensably  necessary  to  the  case,  the 
court  must  meet  and  decide  them ;  but  if  the  case  may  be 
determined  on  other  grounds,  a  just  respect  for  the  Legis- 


241  Massachusetts  —  Address  of  Professor  Thayer. 

lature  requires  that  the  obligation  of  its  laws  should  not 
be  unnecessarily  and  wantonly  assailed." 

And  again,  a  little  earlier  than  this,  he  laid  down  the 
one  true  rule  of  duty  for  the  courts.  When  he  went  to 
Philadelphia  in  1831,  on  that  painful  errand  of  which  I 
have  spoken,  in  answering  a  cordial  tribute  from  the  bar 
of  that  city,  he  remarked  that  if  he  might  be  permitted 
to  claim  for  himself  and  his  associates  any  part  of  the 
kind  things  they  had  said,  it  would  be  this:  that  they  had 
"  never  sought  to  enlarge  the  judicial  power  beyond  its 
proper  bounds,  nor  feared  to  carry  it  to  the  full  extent 
that  duty  required." 

That  is  the  safe  twofold  rule;  nor  is  the  first  part  of 
it  any  whit  less  important  than  the  second ;  nay,  more, 
to-day  it  is  the  part  which  most  requires  to  be  emphasized. 
For  just  here  comes  in  a  consideration  of  very  great 
weight.  Great,  and  indeed  inestimable,  as  are  the  advan 
tages  in  a  popular  government  of  this  conservative  influ 
ence, —  the  power  of  the  judiciary  to  disregard  unconsti 
tutional  legislation, —  it  should  be  remembered  that  the 
exercise  of  it,  even  when  unavoidable,  is  always  attended 
with  a  serious  evil,  namely,  that  the  correction  of  legis 
lative  mistakes  comes  from  the  outside,  and  the  people 
lose  the  political  experience  and  the  moral  education  and 
stimulus  that  come  from  fighting  the  question  out  in  the 
ordinary  way,  and  correcting  their  own  errors.  If  the 
decisions  in  Munn  v.  Illinois,  and  the  Granger  cases, 
twenty-five  years  ago,  and  in  the  Legal  Tender  cases, 
nearly  thirty  years  ago,  had  been  different;  and  the  legis 
lation  there  in  question,  thought  by  many  to  be  uncon 
stitutional  and  by  many  more  to  be  ill-advised,  had  been 
set  aside,  we  should  have  been  saved  some  trouble  and 
some  harm.  But  I  venture  to  think  that  the  good  which 
VOL.  1—16 


John  Marshall  Memorial.  242 

came  to  the  country  and  its  people  from  the  vigorous 
thinking  that  had  to  be  done  in  the  political  debates  that 
followed,  the  infiltration  through  every  part  of  the  pop 
ulation  of  sound  ideas  and  sentiments,  the  rousing  into 
activity  of  opposing  elements,  the  enlargement  of  ideas, 
the  strengthening  of  moral  fibre,  and  the  growth  of  po 
litical  experience  which  came  out  of  it  all, —  far  more 
than  outweighed  any  evil  which  ever  flowed  from  the 
refusal  of  the  court  to  interfere  with  the  work  of  the 
Legislature. 

The  tendency  of  a  common  and  easy  resort  to  this 
great  function,  now  lamentably  too  common,  is  to  dwarf 
the  political  capacity  of  the  people,  and  to  deaden  its 
sense  of  moral  responsibility.  It  is  no  light  thing  to  do 
that. 

What  should  be  done  ?  It  is  the  courts  that  can  do 
most  to  cure  the  evil ;  and  their  opportunity  is  a  very 
great  one.  Let  them  adhere  to  first  principles,  and  con 
sider  how  narrow  is  the  function  which  the  constitutions 
have  conferred  on  them, —  the  office  merely  of  deciding 
litigated  cases.  How  large,  therefore,  is  the  duty  en 
trusted  to  others,  and  above  all  to  the  Legislature.  It  is 
this  body  which  is  charged,  primarily,  with  the  duty  of 
judging  of  the  constitutionality  of  its  work.  The  consti 
tutions,  generally,  give  them  no  authority  to  call  upon  a 
court  for  advice;  they  decide  for  themselves,  and  the 
courts,  owing  to  their  limited  function,  may  never  be 
able  to  say  a  word.  Such  a  body,  charged,  in  every 
State,  with  almost  all  the  legislative  power  of  the  people, 
is  entitled  to  the  most  entire  and  real  respect;  is  entitled, 
as  among  1  rationally  permissible  opinions  as  to  what 
the  Constitution  allows,  to  its  own  choice.  Courts,  as 
has  often  been  said,  are  not  to  think  of  the  legislators 


243  Massachusetts  —  Address  of  Professor  Thayer. 

but  of  the  Legislature,  the  great,  continuous  body  itself, 
abstracted  from  all  the  transitory  individuals  who  may 
happen  to  hold  its  power  at  a  particular  time.  It  is  this 
majestic  representative  of  the  people  whose  action,  is  in 
question, —  a  co-ordinate  department  of  the  Government, 
charged  with  the  greatest  functions,  and  invested,  in  con 
templation  of  law,  with  all  the  wisdom,  virtue,  and  knowl 
edge  that  the  exercise  of  such  functions  requires. 

To  set  aside  the  acts  of  such  a  body,  representing  in  its 
own  field,  (the  very  highest  of  all),  the  ultimate  sovereign, 
should  be  a  solemn,  unusual,  and  painful  act.  Something 
is  wrong  when  it  can  ever  be  other  than  that.  And  if  it 
be  true  that  the  holders  of  legislative  power  are  careless 
or  evil,  the  constitutional  duty  of  the  court  remains  wholly 
untouched;  it  cannot  rightly  undertake  to  protect  the 
people  by  attempting  a  function  not  its  own.  On  the 
other  hand,  by  adhering  to  its  own  place  a  court  may  help, 
as  nothing  else  can,  to  fix  the  spot  where  responsibility 
rests,  viz.,  on  the  careless  and  reckless  legislators,  and  to 
bring  down  on  that  precise  locality  the  thunderbolt  of 
popular  condemnation.  The  judiciary,  to-day,  in  dealing 
with  the  acts  of  co-ordinate  legislatures,  owes  to  the 
country  no  greater  or  clearer  duty  than  that  of  keeping 
its  hands  off  these  acts  wherever  it  is  possible  to  do  it. 
That  course, —  the  true  course  of  judicial  duty  always,— 
will  powerfully  help  to  bring  the  people  and  their  repre 
sentatives  to  a  sense  of  their  own  responsibility. 

There  will  still  remain  to  the  judiciary  an  ample  field 
for  the  determinations  of  this  remarkable  jurisdiction,  of 
which  our  American  law  has  so  much  reason  to  be  proud, — 
a  jurisdiction  which  has  had  some  of  its  chief  illustrations 
and  its  greatest  triumphs,  as  in  Marshall's  time,  so  in  ours, 
while  the  courts  were  refusing  to  exert  it. 


John  Marshall  Memorial.  244 

And  now  I  must  stop.  I  have  tried,  however  imper 
fectly,  to  give  some  picture  of  the  singularly  attractive 
personality  of  the  great  man  whom  we  commemorate, 
some  intimation  of  his  remarkable  qualities  and  achieve 
ments  as  a  judge,  some  comment,  and  even  some  criticism 
here  and  there,  some  reflections  upon  the  present  aspects 
of  that  great  subject  in  which  he  was  most  distinguished, 
and  some  forecast  of  what  is  to  be  desired  and  hoped  for 
in  that  field. 

Poor  indeed  must  my  efforts  have  been  if  they  do  not 
leave  in  your  minds  a  feeling  of  affectionate  reverence 
for  Chief  Justice  Marshall,  of  admiration  for  his  surpass 
ing  powers  and  his  patriotic  devotion  of  them  to  the  service 
of  his  county,  of  gratitude  to  the  Almighty  Father  of 
nations  and  of  men  that  such  a  life,  such  a  character,  and 
such  gifts  were  vouchsafed  to  our  country  in  its  early 
days,  and  of  devout  trust  that  as  God  has  been  to  our 
fathers,  so  he  will  be  to  us,  and  to  our  children,  and  our 
children's  children. 


PROCEEDINGS  AT  THE  DINNER  GIVEN  AT  THE  NEW 
ALGONQUIN  CLUB  UNDER  THE  AUSPICES  OP 
THE  BOSTON  BAR  ASSOCIATION. 

Introductory  Remarks  of  John  C.  Gray,  President  of  the 
Boston  Bar  Association,  at  the  Dinner  given  at  the 
Algonquin  Club. 

I  have  two  telegrams  which  I  wish  to  read.  The  first 
is  from  Mr.  Beverly  B.  Munford,  the  Chairman  of  the  Joint 
Committee  of  the  State  of  Virginia  and  of  the  Richmond 
City  Bar  Association :  "Virginia  sends  her  first  greetings 
to  Massachusetts  on  this  centennial  anniversary.  All 


245  Massachusetts  —  Address  of  Professor  Tucker. 

bonor  to  Marshall,  the  great  Chief  Justice,  and  to  Massa 
chusetts  who  called  him  to  the  bench."  (Applause.) 

I  have  another  telegram  from  the  coming  city  of  the 
country  —  Chicago!  "Illinois  sends  greeting  to  Massa 
chusetts.  The  American  bench  and  bar  are  united  in  one 
common  brotherhood  on  this  historic  day."  (Applause.) 

Brethren,  there  has  been  so  much  eloquence  to-day 
about  Chief  Justice  Marshall,  and  we  hope  that  there 
will  be  so  much  more,  that  I  have  but  one  word  to  say, 
and  that,  1  think,  is  a  word  appropriate  to  this  occasion. 
Chief  Justice  Marshall  was  a  star  of  the  first  magnitude, 
but  he  was  one  of  a  constellation.  Great  bars  make  great 
judges.  Chief  Justice  Marshall  would  never  have  reached 
his  eminence  alone,  nor  if  his  early  legal  associates  had 
been  a  company  of  ignorant  and  pettifogging  attorneys. 
He  was  a  member  of  a  bar  which  has  had  no  superior  in 
ability  and  no  equal  in  learning,  and  the  bar  of  Virginia 
may  take  to  itself  a  considerable  portion  of  the  praise 
which  is  the  just  due  of  the  great  Chief  Justice. 

We  are  fortunate  here  to-night  in  having  an  eminent 
member  of  the  bar  of  Virginia  with  us.  As  with  us,  so 
with  them,  the  profession  is  apt  to  be  hereditary.  For 
four  generations  the  family  of  our  distinguished  guest  has 
furnished  eminent  lawyers  to  the  bar  of  Virginia,  and  it 
gives  me  a  particularly  personal  pleasure  to  say  that  for 
four  generations  they  have  furnished  eminent  professors 
of  law.  Gentlemen,  let  me  introduce  to  you  the  Hon. 
Henry  St.  George  Tucker,  of  Virginia.  (Loud  applause, 
the  members  of  the  Association  rising  to  their  feet.) 

Address  of  Professor  Tucker. 

The  interest  winch  this  occasion  inspires  is  enhanced  no 
little  by  the  reflection  that  on  this  day,  throughout  the 


John  Marshall  Memorial.  246 

length  and  breadth  of  the  land,  courts  of  justice  are 
closed  to  litigants,  commerce  and  trade  partially  sus 
pended,  and  the  association  of  lawyers  in  forty-five 
States  of  the  Union,  as  well  as  schools  devoted  to  in 
struction  in  the  science  of  the  law,  have  temporarily 
laid  aside  their  daily  routine,  to  unite  in  doing  honor  to 
the  memory  of  the  great  Chief  Justice.  The  partiality 
of  your  committee,  to  which  I  owe  the  privilege,  as  a  son 
of  Virginia,  of  uniting  with  this  goodly  fellowship  of 
kindred  spirits  of  the  ancient  Commonwealth  of  Massa 
chusetts  in  the  celebration  of  this  day,  will  always  be 
cherished  by  me  as  among  the  most  pleasing  compli 
ments  of  my  life.  The  renewal  of  the  ties  of  friendship 
between  the  two  States  of  Virginia  and  Massachusetts 
can  be  no  less  happy  in  its  results  than  the  study  and  ex 
altation  of  the  life  and  character  of  the  great  man  whose 
memory  we  meet  to  honor. 

Diversity  of  race,  of  institutions,  of  modes  of  life,  of 
habits  of  thought,  and  of  political  ambitions  have  in  the 
years  gone  by  often  brought  them  into  serious  and  dan 
gerous  antagonism;  but  the  mutual  respect  of  each  for 
the  other  in  the  sturdy  maintenance  of  its  peculiar  views 
has  been  steadfastly  maintained  and  rarely  questioned, 
even  by  the  most  extreme,  in  the  time  of  hottest  conflict. 
Nor  should  it  be  forgotten  that  when  by  the  act  of  6th 
George  III.  the  power  to  legislate  in  all  cases  for  the 
colonies  by  Parliament  was  asserted,  followed  by  the 
passage  of  the  Boston  Port  Bill,  these  bills  were  com 
municated  to  the  Assembly  of  Virginia,  their  indignant 
protest  was  entered  at  once  against  them,  and  that, 
though  dissolved  by  Lord  Dunmore,  and  prevented  from 
further  action  by  him  in  their  official  capacity,  the  mem 
bers  of  that  body  at  once  assembled  as  individuals  in  the 


247  Massachusetts  —  Address  of  Professor  Tucker. 

long  room  at  the  Kaleigh  Tavern  in  the  city  of  Williams- 
burg,  unawed  by  official  despotism,  and  adopted  those 
resolutions  never  to  be  forgotten  by  the  sons  of  these  two 
great  Commonwealths, —  "  We  are,  farther,  clearly  of  the 
opinion  that  an  attack  made  on  one  of  our  sister-colonies 
to  compel  submission  to  arbitrary  taxes  is  an  attack  made 
on  all  British  America,  and  threatens  ruin  to  the  rights 
of  all,  unless  the  united  wisdom  of  the  whole  be  applied." 
May  we  not  pause  to  express  the  hope  that  the  spirit  of 
these  resolutions  may  be  the  future  spirit  of  the  States  of 
this  great  Union,  that  the  threatened  blow  of  arbitrary 
power  at  any  one  of  them  from  foreign  or  domestic  foe 
may  unite  the  hearts  of  all  to  defend  the  one,  as  part  of 
the  whole? 

Judge  Marshall's  judicial  reputation  can  safely  be  left 
in  the  masterful  opinions  which  filled  our  reports  for 
more  than  a  third  of  a  century,  and  will  remain  unim 
paired  after  the  musty  volumes  which  contain  them  have 
fallen  to  dust.  In  logical  power  and  power  of  analysis 
they  have  certainly  never  been  excelled,  and  it  may  well 
be  doubted  if  they  have  ever  been  equaled  on  any  bench. 

It  is  my  purpose  to  ask  you  to  turn  for  a  moment  with 
me  this  evening  from  a  consideration  of  John  Marshall 
the  judge,  to  that  of  John  Marshall  the  citizen;  and  I 
do  this  the  more  readily  because  of  the  ample  vindica 
tion  which  his  judicial  career  has  received  this  day  at 
the  hands  of  our  distinguished  brother  Thayer,  of  Har 
vard  University. 

At  an  early  period  of  Virginia's  history,  at  Turkey 
Island,  a  plantation  some  fifteen  or  twenty  miles  from  the 
city  of  Eichmond,  near  the  scene  of  the  terrific  battle  of 
Malvern  Hill,  lived  the  Virginia  planter,  William  Kan- 
dolph.  He  was  the  ancestor  of  all  of  that  name  in  Vir- 


JoLn  Marshall  Memorial.  248 

ginia,  and  from  him  descended,  in  direct  line,  Thomas 
Jefferson,  John  Marshall,  and  Robert  E.  Lee, —  a  trium 
virate  of  civic,  judicial  and  military  power.  Sprung 
from  a  distinguished  lineage,  trained  in  a  school  where 
the  amenities  of  life  as  well  as  u  the  humanities  "  were 
taught  in  their  highest  excellence,  John  Marshall  prac 
ticed  from  his  earliest  childhood  a  scrupulous  regard  for 
the  rights  and  feelings  of  others  and  an  indulgence  to  all 
faults  except  his  own. 

With  a  self-control  and  equipoise  which  were  rarely 
disturbed  under  the  most  trying  circumstances,  and  a 
graciousness  of  manner  which  broke  down  all  barriers, 
giving  to  the  humblest  as  well  as  to  the  highest  the  as 
surance  of  his  friendly  consideration,  and  a  mind  well- 
disciplined  by  education  in  the  highest  schools  and  under 
the  tutelage  of  his  father,  a  man  of  superior  education 
and  intelligence,  it  was  impossible  that  he  could  have 
been  other  than  a  man  of  mark  and  influence  in  his  State. 

Would  it  be  claiming  too  much  to  say  that  John  Mar 
shall,  the  citizen,  was  the  natural  product  of  the  civilization 
existing  in  Virginia  during  his  boyhood  and  manhood, — 
a  civilization  which,  alas,  except  here  and  there  in  cer 
tain  localities,  is  fast  passing  away.  The  home,  not  the 
club,  was  its  centre;  the  family,  its  unit.  The  father 
was  the  head  of  the  family,  not  the  joint-tenant  with 
the  wife  of  a  house,  nor  the  tenant-at-will  of  his  wife. 
The  wife  and  the  mother  was  the  queen  of  the  house 
hold,  not  merely  a  housekeeper  for  a  husband  and  fam 
ily.  Obedience  to  those  in  authority  was  the  first  les 
son  exacted  of  the  boy.  Inculcated  with  tenderness,  it 
was  enforced  with  severity  if  need  be,  until  the  word 
of  the  father  or  the  expressed  wish  of  the  mother  carried 


249  Massachusetts  —  Address  of  Professor  Tucker. 

with  it  the  force  of  law  as  completely  as  the  decree  of  a 
court  or  the  mandate  of  a  king. 

Eeverence  for  superiors  in  age  and  deference  to  all, 
rather  than  an  arrogant  self-assertion,  were  magnified  as 
cardinal  virtues;  not  as  teaching  humility  and  enforcing 
a  lack  of  proper  self-respect,  but  rather  to  exalt  high 
ideals  and  stimulate  an  admiration  for  "the  true,  the 
beautiful,  and  the  good." 

Fidelity  to  truth;  the  maintenance  of  personal  honor; 
deference  to  the  opinions  and  feelings  of  others,  without 
abating  one's  own  or  aggressively  thrusting  them  on 
others;  a  kindliness  of  manner  to  dependants;  a  knightly 
courtesy  to  all,  but  with  special  and  tender  regard  in 
thought,  word  and  action  toward  woman, — were  in  turn 
patiently  taught  in  all  the  lessons  of  the  fireside  and  at 
the  family  altar,  and  earnestly  insisted  upon  in  the  for 
mation  of  the  character  of  a  true  gentleman.  "  Any  man 
will  be  polite  to  a  beautiful  young  woman,  but  it  takes  a 
gentleman  to  show  the  same  respect  to  a  homely  old 
woman,"  was  the  stinging  rebuke  of  a  father  to  his  son 
who  failed  to  remove  his  hat  in  passing  a  forlorn  old 
woman  on  a  public  highway  in  Yirginia. 

The  old  field  school,  the  private  tutor,  the  high  school, 
the  college,  led  the  young  mind  by  easy  stages  to  its  full 
intellectual  maturity. 

Nowhere  was  the  principle  "sana  mens  in  sano  cor- 
pore  "  more  scrupulously  taught  than  in  Yirginia.  The 
rod  and  stream,  the  gun,  the  "hounds  and  horn,"  the 
chase  with  the  music  of  the  pack,  the  bounding  steed,  all 
lent  their  ready  aid  in  developing  the  physical  manhood 
of  the  boy.  In  the  pure  atmosphere  of  his  country  home, 
amid  its  broad  fields  and  virgin  forests,  contracted 
houses  in  narrow  streets  had  no  charms  for  him.  To 


John  Marshall  Memorial.  250 

join  the  chase  was  the  first  promotion  to  which  the  boy 
looked  as  evidencing  his  permanent  release  from  the 
nursery,  and  gun  and  dog  became  his  constant  compan 
ions.  Skill  in  horsemanship  was  essential,  and  breaking 
colts  was  naturally  followed  by  broken  limbs;  but  man 
hood  found  a  race  of  trained  horsemen,  both  graceful 
and  skilful  in  the  saddle,  unexcelled,  I  dare  venture  to 
assert,  by  any  civilized  people.  A  child  of  nature,  the 
Virginia  boy  communed  with  her  as  his  mother,  and  from 
her  purest  depths  drew  the  richest  inspirations.  To  him 
no  mountains  were  so  blue  as  hers,  no  streams  so  clear, 
no  forests  so  enchanting,  no  homes  so  sweet. 

Keligion,  the  duty  of  man  to  his  Creator  —  not  sectari 
anism — was  scrupulously  taught,  and  Sunday  morning 
found  the  family  alive  in  preparations  for  attending 
religious  service  at  Zion  or  Trinity,  as  it  might  happen 
to  be  the  first  or  the  fourth  Sunday  of  the  month.  From 
this  duty  none  were  exempt,  from  the  least  to  the  great 
est.  The  pastor  was  the  friend  on  whom  all  troubles, 
temporal  and  spiritual,  were  cast,  and  his  visits  were  long 
remembered  and  talked  of  in  the  life  of  each  family. 
Deference  to  his  wishes  and  reverence  for  his  character 
were  wellnigh  universal. 

"A  man  he  was  to  all  the  country  dear, 
And  passing  rich  with  forty  pounds  a  year; 
Remote  from  towns  he  ran  his  godly  race, 
Nor  e'er  had  changed,  nor  wished  to  change,  his  place.** 

Such  was  the  atmosphere  in  which  John  Marshall  was 
reared  and  by  which  he  was  surrounded  when  at  nine 
teen  years  of  age  he  enlisted  for  the  War  of  Independ 
ence  under  the  magic  influence  of  Henry's  fiery  eloquence. 


251  Massachusetts  —  Address  of  Professor  Tucker. 

We  cannot  trace  his  record  as  a  soldier  throughout  that 
great  struggle.  Suffice  it  to  say  that,  entering  the  army  as 
a  lieutenant,  he  left  it  as  a  captain,  and  during  the  whole 
course  of  the  war  displayed  the  highest  qualities  of  a 
soldier;  and  surely  it  is  not  without  interest  to  remember 
that  the  hand  which  penned  >the  weighty  judgment  of 
the  court  in  McCulloch  v.  The  State  of  Maryland  cut  the 
firewood  with  the  axe  for  the  campfire  of  the  soldier,  and 
that  the  feet  which  bore  him  to  the  judgment  hall  to  de 
liver  the  marvelous  opinion  in  Gibbons  v.  Ogden  had 
reddened  the  snow  at  Valley  Forge  with  the  patriotic 
blood  of  the  soldier. 

At  the  age  of  twenty-six  he  became  a  member  of  the 
Legislature  of  Virginia,  and  lent  the  aid  of  his  mighty 
mind  to  settling  the  intricate  problems  which  arose  out 
of  that  disturbed  period.  Let  his  own  words  tell  of  his 
sentiments  at  this  date:  "When  I  recollect  the  wild  and 
enthusiastic  notions  with  which  my  political  opinions  of 
that  day  were  tinctured,  I  am  disposed  to  ascribe  my  de 
votion  to  the  Union,  and  to  a  government  competent  to 
its  preservation,  at  least  as  much  to  casual  circumstances 
as  to  judgment.  I  had  grown  up  at  a  time  when  the 
love  of  the  Union  and  the  resistance  to  the  claims  of 
Great  Britain  were  the  inseparable  inmates  of  the  same 
bosom ;  when  patriotism  and  a  strong  fellow-feeling  with 
our  fellow-citizens  of  Boston  were  identical;  when  the 
maxim,  *  United  we  stand,  divided  we  fall,'  was  the 
maxim  of  every  orthodox  American.  And  I  had  imbibed 
these  sentiments  so  thoroughly  that  they  constituted  a 
part  of  my  being.  I  carried  them  with  me  into  the  army, 
where  I  found  myself  associated  with  brave  men  from 
different  States,  who  were  risking  life  and  everything 
valuable  in  a  common  cause,  believed  by  all  to  be  most 


John  Marshall  Memorial.  252 

precious,  and  where  I  was  in  the  habit  of  considering 
America  as  my  country  and  Congress  as  my  govern 
ment." 

Among  the  questions  which  called  forth  his  deepest 
interest  at  this  time  was  the  necessity  for  making  im 
mediate  provision  for  the  payment  of  the  officers  and 
soldiers  of  the  disbanded  army;  and  so  loyal  was  he  to 
their  interests,  that  ever  after  they  were  his  fast  and 
devoted  friends.  He  represented  his  native  county  of 
Fauquier,  and  subsequently  his  adopted  county  of  Hen- 
rico,  in  the  Legislature. 

As  a  lawyer  he  was  ever  faithful  to  the  interests  of 
his  clients,  and  from  the  very  beginning  of  his  career 
was  recognized  as  a  man  of  great  ability  in  his  chosen 
profession.  His  argument  in  the  case  of  Ware  v.  Hylton 
in  the  Federal  court  in  Richmond  produced  a  profound 
impression,  and  was  only  excelled,  perhaps,  in  the  effect 
iveness  of  the  argument  by  his  great  speech  in  the  Jona 
than  Bobbins  case  in  the  House  of  Representatives. 

I  purpose,  however,  to  confine  my  remarks  to  two  oc 
casions  in  Judge  Marshall's  life  which  afforded  him  spe 
cial  opportunities  for  exhibiting  his  vast  powers  for  the 
benefit  of  his  people ;  and  to  attempt,  in  a  brief  form,  a 
sketch  of  the  Virginia  Convention  of  1788,  called  to 
ratify  the  Federal  Constitution,  and  of  the  Virginia  Con 
vention  of  1829-30,  called  to  change  the  Constitution  of 
the  State,  in  both  of  which  he  took  a  prominent  part, — 
two  bodies  which,  were  I  not  standing  on  the  soil  of 
Massachusetts,  I  should  be  tempted  to  affirm  had  never 
been  surpassed  on  this  continent  in  the  ability  and  broad 
patriotism  of  their  members. 

Monday,  June  2,  1T88,  found  the  little  city  of  Rich 
mond  on  the  James  all  astir.  The  streets  for  that  day 


253  Massachusetts  —  Address  of  Professor  Tucker. 

were  crowded  with  eager  men  hastening  toward  the  cap- 
itol;  handsome  equipages  laden  with  Virginia's  fairest 
daughters  lined  the  main  thoroughfares  leading  to  the 
city.  A  stranger  standing  on  one  of  the  hills  of  the  city 
looking  in  any  direction  would  have  noticed  clouds  of 
dust  rising  in  the  distance  from  the  country  roads.  The 
roads,  not  railroads,  leading  into  Kichmond  were  lined 
with  travelers  approaching  the  city,  some  in  gigs,  some 
in  phaetons,  and  many  on  horseback  with  saddlebags  as 
their  Saratogas.  Nor  were  they  only  those  who  expected 
to  participate  in  the  proceedings  of  the  Convention. 
Distinguished  strangers  from  other  States;  planters  from 
every  portion  of  the  Commonwealth, —  statesmen  though 
planters;  while  the  ambitious  youth  from  its  remotest 
corners  was  eagerly  hastening  to  the  scene  to  witness 
the  most  gigantic  straggle  in  the  history  of  the  Old  Do 
minion.  Comely  maidens  and  stately  matrons,  whose 
grace  had  lent  its  charms  to  many  official  functions  in 
the  ancient  capitol,  formed  a  bouquet  of  rarest  fragrance, 
and  diffused  its  brilliancy  over  the  gathered  assembly. 
Many  members  arrived  late  Sunday  evening,  and  they 
continued  to  come  until  the  hour  of  assembling  on  the 
next  day  at  twelve.  The  steam-engine  brought  none  to 
the  city;  the  trolley  lines  that  now  pierce  the  centers  of 
commerce  and  population  were  unpopular  in  those  days; 
while  the  delegates  from  beyond  the  Blue  Ridge  on 
horseback  would  scarcely  dare  to  scale  the  mountains  in 
the  ample  and  comfortable  carriage  used  for  neighbor 
hood  purposes.  Xor  was  the  bicycle  or  the  automobile 
used  as  a  mode  of  conveyance  by  members,  and  the  pic 
ture  of  Chancellor  Wythe  or  of  the  venerable  Pendleton 
arriving  at  the  capitol  in  an  automobile  is  one  that  the 
wildest  imagination  is  unable  to  draw.  Patrick  Henry 


John  Marshall  Memorial.  254 

in  his  gig,  Pendieton  in  his  phaeton  and  others  on  horse 
back  traveled  the  dusty  roads  and  across  broad  streams 
after  many  days  of  wearisome  journey,  to  take  part  in 
the  deliberations  of  this  great  body. 

In  their  elevated  character  and  the  loftiness  of  their 
patriotism,  it  is  no  disparagement  to  claim  that  the  Con 
vention  about  to  assemble  was  not  inferior  to  that  which 
adopted  the  instrument  now  presented  for  their  consid 
eration.  Pendieton,  the  President  of  the  Court  of  Ap 
peals,  and  Wythe,  the  venerable  Chancellor  and  teacher 
of  the  law,  who,  with  patient  skill,  had  laid  deep  the 
foundations  of  learning  in  the  minds  of  Marshall,  Ran 
dolph,  and  others,  were  fit  representatives  of  the  ancient 
glory  of  the  Commonwealth.  George  Mason  of  Gunsten 
Hall,  Edmund  Randolph,  Richard  Bland,  Patrick  Henry, 
James  Madison  and  Grayson,  Henry  Lee  of  the  legion, 
Benjamin  Harrison  the  elder,  the  accomplished  Innes, 
Monroe,  and  Marshall  constitute  some  of  the  names  which 
appear  on  the  records  of  that  body. 

George  Washington,  Patrick  Henry,  Edmund  Ran 
dolph,  John  Blair,  James  Madison,  George  Mason,  and 
George  Wythe  were  the  accredited  representatives  of  the 
State  of  Virginia  to  the  Federal  Convention.  Patrick 
Henry  declined  to  serve  —  McClurg  became  his  successor. 
"With  the  exception  of  the  names  of  Washington,  Blair, 
and  Madison,  the  Constitution  contained  the  signatures 
of  no  other  delegates  from  Yirginia.  Mason  and  Henry 
were  its  active  and  implacable  foes,  and  by  pen  and  voice 
from  the  time  of  its  adoption  to  the  assembling  of  the 
Yirginia  Convention,  they  made  known  their  objections 
to  the  people  of  the  State  with  a  power  unexcelled  in 
that  day.  The  selection  of  the  venerable  Pendieton  as 
President  of  the  Convention  was  in  no  way  a  test  of  the 


255  Massachusetts  —  Address  of  Professor  Tucker. 

strength  of  the  parties,  and  until  the  final  roll  was  called 
it  was  in  doubt  what  would  be  the  fate  of  the  Constitu 
tion  in  Yirginia.  Judge  Marshall,  in  writing  of  the  re 
sults,  said,  "  that  so  small  in  many  instances  was  the  ma 
jority  in  its  favor  as  to  afford  strong  ground  for  the  opin 
ion  that  had  the  influence  of  character  been  removed  the 
intrinsic  merits  of  the  instrument  would  not  have  secured 
its  adoption."  As  an  illustration  of  the  influence  of 
character,  it  may  be  said  that  no  four  men  exerted  more 
influence  in  favor  of  the  Constitution  than  George  Wash 
ington,  Edmund  Pendleton,  George  Wythe,  and  James 
Madison,  and  four  purer  names  were  probably  never  re 
corded  in  profane  history. 

Marshall,  the  future  expounder  of  this  instrument,  was 
not  a  member  of  the  Convention  which  framed  it,  and 
was  thirty-three  years  of  age  when  he  took  his  seat  as  a 
member  of  the  Yirginia  Convention  called  to  ratify  it. 
The  impassioned  eloquence  of  Patrick  Henry,  and  the 
keen  and  incisive  logic  of  Mason,  day  by  day  hurled  with 
what  seemed  to  be  irresistible  effect  against  the  instrument, 
bore  heavily  upon  its  friends  and  caused  them  to  feel  the 
keenest  doubt  of  the  ultimate  result.  Madison  and  Wythe 
had  met  with  signal  ability  the  shafts  of  the  opposition. 
The  public  press,  the  great  commanding  influence  of 
Washington,  and  the  solid  phalanx  of  the  soldiery  were 
brought  to  bear  by  every  ingenuity  which  skill  and  tact 
could  devise  in  favor  of  its  adoption. 

Monroe,  a  young  man  of  thirty,  had  just  addressed 
the  Convention  in  opposition  to  the  Constitution,  which 
in  subsequent  years  he  was  called  upon  to  defend  and 
execute.  "He  was  succeeded  on  the  floor  by  a  tall, 
young  man,  slovenly  dressed,  with  piercing  black  eyes 
that  would  lead  the  observer  to  believe  that  their  pos- 


John  Marshall  Memorial.  256 

sessor  was  more  destined  to  toy  with  the  Muses  than  to 
worship  at  the  sterner  shrine  of  Themis.  He  was  des 
tined,  like  Monroe,  to  fill  the  mission  to  France,  and  to 
preside  in  the  Department  of  War  and  in  the  Depart 
ment  of  State  under  the  Federal  Constitution.  Marshall 
was  in  his  thirty-third  year,  and  from  the  close  of  the 
war  to  the  meeting  of  the  Convention,  with  the  .exception 
of  an  occasional  session  of  the  House  of  Delegates,  was 
engaged  in  the  practice  of  law.  His  manners,  like  those 
of  Monroe,  were  in  strong  contrast  with  those  of  Madison 
and  Grayson.  His  habits  were  convivial  almost  to  excess ; 
and  he  regarded  as  matters  beneath  his  notice  those  ap 
pliances  of  dress  and  demeanor  which  are  commonly 
considered  important  to  advancement  in  a  public  profes 
sion.  .Nor  should  those  personal  qualities  which  cement 
friendship  and  gain  the  affections  of  men,  and  which  he 
possessed  in  an  eminent  degree,  be  passed  over  in  a  like 
ness  of  this  young  man, — qualities  as  prominently  marked 
in  the  decline  of  his  honored  life  when  his  robe  had  for 
a  third  of  a  century  been  fringed  with  ermine,  as  when, 
in  the  heyday  of  his  youth,  dressed  in  the  light  round 
about,  he  won  his  way  to  every  heart." 

His  speech  on  this  occasion  received  marked  attention, 
and  bears  the  characteristic  marks  of  the  speeches  of  his 
riper  years.  His  exordium  attracts  the  attention  at  once 
by  presenting  the  prominent  ideas  in  his  mind  without 
preliminaries.  "I  perceive,"  said  he,  "  that  the  object  of 
the  discussion  now  before  us  is  whether  democracy  or 
despotism  be  most  eligible.  I  am  sure  that  those  who 
framed  the  instrument  now  submitted  to  our  investiga 
tion,  and  those  who  now  support  it,  intend  the  estab 
lishment  and  security  of  the  former.  The  supporters  of 
the  Constitution  claim  the  title  of  being  firm  friends  of 


257  Massachusetts  —  Address  of  Professor  Tucker. 

liberty  and  the  rights  of  mankind.  They  say  that  they 
consider  it  as  the  best  means  of  protecting  liberty.  We, 
sir,  idolize  democracy.  Permit  me  to  attend  to  what  the 
honorable  gentleman  [Henry]  has  said.  He  has  expati 
ated  on  the  necessity  of  due  attention  to  certain  maxims 
and  certain  principles  from  which  a  free  people  ought 
never  to  depart.  I  concur  with  him  in  the  propriety  of 
the  observance  of  such  maxims.  They  are  necessary  in 
any  government,  but  more  essential  to  a  democracy  than 
to  any  other.  What  are  the  favorite  maxims  of  democ 
racy  ?  A  strict  observance  of  justice  and  public  faith  and 
a  steady  adherence  to  virtue.  These,  sir,  are  the  princi 
ples  of  a  good  government.  No  mischief,  no  misfortune, 
ought  to  deter  us  from  a  strict  observance  of  justice  and 
public  faith.  Would  to  heaven  that  these  principles  had 
been  observed  under  the  present  government.  Had  this 
been  the  case,  the  friends  of  liberty  would  not  be  so  will 
ing  now  to  part  with  it." 

The  speech  from  which  this  extract  has  been  taken,  in 
fairness  it  must  be  said,  exhibited  chiefly  the  skill  of  the 
lawyer,  rather  than  the  breadth  of  the  statesman.  He 
did  not,  by  a  masterful  array  of  the  advantages  of  the 
Federal  Constitution  and  its  beneficent  effects  upon  the 
people  of  the  country,  seek  to  induce  its  acceptance  by 
the  Convention  on  its  merits,  but  rather  accepting  the 
action  of  the  Federal  Convention  as  &  prima  facie  con 
clusion  of  the  beneficence  of  the  instrument,  he  sought  by 
skillfulness  and  tact  to  avert  the  ponderous  blows  of 
Henry  and  Mason,  hurled  at  it  from  time  to  time  from 
their  well-equipped  armories. 

At  a  subsequent  day,  in  defending  the  militia  clause  of 
the  Constitution,  Judge  Marshall  said :  "  Are  gentlemen 
VOL.  1  —  17 


John  Marshall  Memorial.  258 

serious  when  they  assert  that  if  the  State  governments 
had  power  to  interfere  with  the  militia,  it  is  by  implica 
tion?  If  they  were,  he  asked  the  committee  whether  the 
least  attention  would  not  show  that  they  were  mistaken. 
The  State  governments  do  not  derive  their  powers  from 
the  General  Government,  but  each  government  derives 
its  powers  from  the  people,  and  each  was  to  act  accord 
ing  to  the  powers  given  it.     Would  any  gentleman  deny 
this  ?    He  demanded  if  powers  not  given  were  retained 
by  implication.     Could  any  one  say  so  ?    Could  any  man 
say  that  this  power  was  not  retained  by  the  States,  as 
they  had  not  given  it  away  ?    For  does  not  a  power  re 
main  until  it  is  given  away  ?  "    And  in  closing  he  said, 
"  that  the  po\ver  of  governing  the  militia  was  not  vested 
in  States  by  implication,  because  being  possessed  of  it  ante 
cedent  to  the  adoption  of  the  government,  and  not  being 
divested  of  it  by  any  grant  or  restriction  in  the  Consti 
tution,  they  must  necessarily  be  as  fully  possessed  of  it 
as  ever  they  had  been ;  and  it  could  not  be  said  that  the 
States  derived  any  powers   from  that  system,  but  re 
tained  them,  though  not  acknowledged  in  any  part  of  it." 
By  far  the  most  interesting  speech  made  by  Judge 
Marshall  in  the  Convention  was  one  in  which  he  elabo 
rated  his  views  on  the  judicial  system  provided  for  in  the 
Constitution.     As  we  read  this  speech,  made  thirteen 
years  before  he  assumed  the  position  of  Chief  Justice, 
we  see  many  traces  of  views  which  became  his  judicial 
judgments.     I  cannot  stop  to  quote  largely  from  it,  but 
it  is  an  able  defense  of  the  right  of  the  Federal  Govern 
ment  to  establish  and  maintain  its  own  judicial  system. 
Mason  had  made  the  objection  that  the  Federal  courts 
would  be  used  to  oppress  the  people;  that  their  judg 
ments  would  not  be  impartial ;  and  that  Federal  offenders 


259  Massachusetts  —  Address  of  Professor  Tucker. 

would  escape  the  penalties  of  the  law  because  of  the 
partialities  of  the  courts  for  them.  "Let  us  examine 
each  of  them  [grants  of  Federal  jurisdiction]  with  a  sup 
position  that  the  same  impartiality  will  be  observed 
there  as  in  other  courts,  and  then  see  if  any  mischief 
will  result  from  them.  "With  respect  to  its  cognizance 
in  all  cases  arising  under  the  Constitution  and  the  laws 
of  the  United  States,  he  [Mason]  says  that,  the  laws  of 
the  United  States  being  paramount  to  the  laws  of  the 
particular  States,  there  is  no  case  but  that  this  will  ex 
tend  to.  Has  the  government  of  the  United  States 
power  to  make  laws  on  all  subjects  ?  Does  he  under 
stand  it  so  ?  Can  they  make  laws  affecting  the  modes 
of  transferring  property,  or  contracts,  or  claims  between 
citizens  of  the  same  State?  Can  they  go  beyond  the 
delegated  powers?  If  they  were  to  make  a  law  not 
warranted  by  any  of  the  powers  enumerated,  it  would  be 
considered  by  the  judges  as  an  infringement  of  the  Con 
stitution  which  they  are  to  guard.  They  would  not  con 
sider  such  a  law  as  coming  under  their  jurisdiction, — 
they  would  declare  it  void  ! " 

Further  on,  I  quote:  "With  respect  to  disputes  be 
tween  a  State  and  the  citizens  of  another  State  —  its 
jurisdiction  has  been  decried  with  unusual  vehemence. 
I  hope  no  gentleman  will  think  a  State  will  be  called  at 
the  bar  of  a  Federal  court.  Is  there  no  such  case  at 
present?  Are  there  not  many  cases  in  which  the  Legis 
lature  of  Virginia  is  a  party,  and  yet  the  State  is  not 
sued?  It  is  not  rational  to  suppose  that  the  sovereign 
power  shall  be  dragged  before  a  court.  The  intent  is  to 
enable  States  to  recover  claims  of  individuals  residing  in 
other  States.  I  contend  this  construction  is  warranted 
by  the  words."  It  may  be  doubted  whether  the  Supreme 


John  Marshall  Memorial.  260 

Court  at  the  time  of  the  decision  of  Chisholm  v.  Georgia 
had  these  views  of  the  great  Chief  Justice  before  them, 
though  Mr.  Hamilton's  views  in  the  eighty-first  number 
of  the  Federalist  were  in  accord  with  them. 

While  it  cannot  be  said  injustice  that  Judge  Marshall 
was  the  leader  of  the  Constitutional  forces  in  this  Con 
vention,  it  can  with  truth  be  affirmed  that  on  the  subjects 
which  he  discussed  he  displayed  the  same  abilities  for 
which  he  was  afterward  so  justly  distinguished,  and  won 
the  respect  and  admiration  of  all  of  his  colleagues.  When 
by  the  narrow  margin  of  ten  votes  in  a  total  of  180,  the 
Constitution  was  ratified  and  a  committee  was  appointed 
by  the  President  to  report  a  form  of  ratification,  we  find 
his  name  on  that  committee  with  Governor  Randolph, 
Mr.  Nicholas,  Mr.  Madison,  and  Mr.  Cor  bin  as  his  asso 
ciates;  and  when,  in  order  to  meet  the  views  of  the  large 
minority  of  the  Convention  and  quiet  their  fears,  a  com 
mittee  was  appointed  to  prepare  and  report  such  amend 
ments  as  should  be  deemed  necessary,  we  find  Judge 
Marshall's  name  on  that  committee,  associated  with 
George  Wythe,  Benjamin  Harrison,  Patrick  Henry,  Ed 
mund  Randolph,  George  Mason,  James  Madison,  John 
Tyler,  James  Monroe,  Richard  Bland,  John  Blair,  and 
others.  And  so  on  the  27th  of  June,  1788,  the  Constitu 
tion  was  ratified  by  the  Convention. 

As  we  look  back  upon  the  great  record  which  he  was 
permitted  to  make  for  a  third  of  a  century  in  expound 
ing  the  instrument  which  he  exhorted  the  people  of  Vir 
ginia  to  adopt,  it  may  well  be  doubted  whether  that  in 
strument  would  ever  have  been  ratified  by  the  people  of 
Virginia  in  so  close  a  contest  had  John  Marshall  been  its 
foe  instead  of  its  friend ;  and  as  we  view  the  history  and 
development  of  our  country  in  its  mutation  of  parties, 


261  Massachusetts  —  Address  of  Professor  Tucker. 

and  the  advancement  of  this  remarkable  people  in  every 
department  of  human  endeavor,  it  may  well  be  doubted 
if  he  ever  did  a  greater  service  to  the  country  than  in 
throwing  the  weight  of  his  great  influence  in  favor  of  the 
adoption  of  the  Constitution. 

The  scene  shifts.  Forty-one  years  have  passed.  The 
young  man  in  the  glow  of  youthful  strength  with  all  of 
the  enthusiasm  and  zeal  of  youth  is  transformed.  Age 
has  mellowed  his  zeal  but  has  not  impaired  his  intellect. 
Plis  judgments,  which  for  twenty-eight  years  have  been 
the  admiration  of  the  legal  world,  have  added  dignity, 
power,  and  reverence  to  the  man.  At  home  and  abroad 
the  indorsement  by  Marshall  of  any  legal  proposition  is 
eagerly  sought  and  triumphantly  adopted.  Wisdom  and 
experience  are  added  to  his  matchless  powers;  and 
though  his  physical  form  lacks  the  athletic  power  which 
it  possessed  on  the  2d  of  June,  1788,  those  lustrous  eyes 
have  lost  none  of  their  power, — the  windows  of  a  fully- 
developed  soul.  Perhaps  the  world  fails  to  record  a  more 
striking  instance  of  unselfish  patriotism  than  that  of 
Judge  Marshall  leaving  the  bench  of  the  Supreme  Court 
with  its  important  and  pressing  work,  its  questions  of  far- 
reaching  import,  involving  the  interests  of  the  whole 
country,  and  offering  himself  as  a  candidate  for  a  State 
Convention  in  a  district  which  seemed  hopelessly  opposed 
to  him.  His  election  was  the  triumph  of  the  man,  the 
citizen.  Eichmond  was  to  be  the  scene  of  another  Con 
vention,  called  to  change  the  Constitution  of  the  State  of 
Virginia ;  and  Judge  Marshall  regarded  the  making  of  a 
State  Constitution  the  highest  duty  that  a  citizen  could 
be  called  upon  to  discharge.  Pause  with  me  for  a 
moment  as  that  venerable  body  of  men  passes  in  review 
before  us:  Jamos  Madison,  now  "  fallen  into  the  sear  and 


John  Marshall  Memorial.  262 

yellow  leaf,"  rich  in  stores  of  wisdom  and  experience,  a 
member  of  the  Convention  which  framed  the  Federal 
Constitution, —  its  reputed  father;  Marshall's  colleague 
in  the  Virginia  Convention  of  1788;  Cabinet  officer;  twice 
President;  and  now  leaving  the  quiet  repose  of  Montpe- 
lier  to  aid  in  the  work  of  constructing  a  suitable  Consti 
tution  for  his  people.  James  Monroe,  twice  President, 
was  there, —  another  of  Marshall's  colleagues  in  the 
Convention  of  1788.  John  Tyler,  the  son  of  the  senior 
Tyler,  a  member  of  the  Convention  of  1788,  the  future 
President  of  the  United  States,  was  there.  John  Ran 
dolph  of  Roanoke,  quaint,  peculiar,  satirical,  eloquent,  in 
public  life  for  a  third  of  a  century,  was  there.  Benjamin 
Watkins  Leigh,  Robert  Stanard,  and  Chapman  Johnson, 
the  great  legal  triumvirate,  who  swayed  the  Appellate 
Court  of  Virginia  by  their  power  and  eloquence  for  a 
quarter  of  a  century,  were  there.  Nicholas,  Drumgoole, 
William  B.  Giles,  John  Y.  Mason,  Philip  P.  Barbour, 
Charles  Mercer,  Alfred  II.  Powell,  Philip  Doddridge,  John 
S.  Barbour,  Littleton  W.  Tazewell,  Lucas  P.  Thompson, 
Abel  P.  Upshur,  and  many  others  were  names  of  which 
any  Commonwealth  might  be  justly  proud,  and  than 
whom  none  more  worthily  deserved  the  wreath  of  immor 
tality.  When  Madison,  upon  the  assembling  of  the  Con 
vention,  arose  and  nominated  James  Monroe  for  Presi 
dent,  there  was  a  hush  throughout  the  whole  assembly. 
He  was  elected  without  opposition  and  conducted  to  the 
chair  by  Madison  and  Marshall. 

Two  great  questions  were  presented  for  the  considera 
tion  of  this  body,  in  the  discussion  of  which  Judge  Mar 
shall  took  a  prominent  part. 

The  first  was  the  question  of  the  basis  of  representa 
tion  in  the  Legislature, —  one  party  advocating  what  was 


y>      ^    OF  THE  X 

(  UNIVERSITY    1 

Vrvu?,^7 


263  Massachusetts  —  Address  of  Professor  Tucker. 

known  as  the  white  basis,  and  the  other  insisting  that 
the  slaves  should  be  represented  as  laid  down  in  article 
I,  section  3,  of  the  Constitution  of  the  United  States. 
The  Blue  Ridge  Mountains  constituted  the  dividing  line 
between  the  two  sections  of  the  State.  The  country  east 
of  the  Blue  Eidge  contained  a  large  slave  population ;  that 
west  contained  but  few  slaves.  The  views  of  the  dele 
gates  naturally,  in  a  large  degree,  were  controlled  by 
their  location.  Philip  Doddridge  was  the  leader  of  the 
west  on  this  great  question,  Marshall  was  among  the 
leaders  of  the  east,  and  voted  for  the  resolution  of  Mr. 
Leigh,  providing  that  "  representation  in  the  House  of 
Delegates  be  apportioned  among  the  several  counties, 
cities  and  towns  of  the  Commonwealth  according  to  their 
respective  numbers,  which  shall  be  determined  by  adding 
to  the  whole  number  of  free  persons,  including  those 
bound  to  service  for  a  term  of  years  and  excluding  Indi 
ans  not  taxed,  three-fifths  of  all  other  persons  "  (page 
322,  Debates  of  Virginia  Convention). 

In  discussing  this  question,  Judge  Marshall  summarizes 
it  as  follows:  "Several  different  plans  are  contemplated. 
The  basis  of  white  population  alone;  the  basis  of  free 
population  alone ;  a  basis  of  population  alone ;  a  basis  com 
pounded  of  taxation  and  white  population  —  or,  which  is 
the  same  thing,  a  basis  of  federal  numbers.  Two  other 
bases  were  also  proposed.  One  referring  to  the  total 
population  of  the  State,  the  other  to  taxation  alone. 

u  Now  of  these  various  propositions,  the  basis  of  white 
population  and  the  basis  of  taxation  alone  are  the  two 
extremes.  Between  the  free  population  and  the  white 
population  there  is  almost  no  difference.  Between  the 
basis  of  total  population  and  the  basis  of  taxation  there 
is  but  little  difference.  The  people  of  the  east  thought 


John  Marshall  Memorial.  261 

they  offered  a  fair  compromise  when  they  proposed  the 
compound  basis  of  population  and  taxation,  or  the  basis 
of  federal  numbers.  We  thought  that  we  had  Republican 
precedent  for  this  —  a  precedent  given  us  by  the  wisest 
and  truest  patriots  that  ever  were  assembled ;  but  that  is 
now  passed, —  we  are  now  willing  to  meet  on  a  new  mid 
dle  ground,  beyond  what  we  thought  was  a  middle 
ground,  and  the  extreme  on  the  other  side." 

The  Convention,  after  a  long  and  heated  debate,  prac 
tically  adopted  Judge  Marshall's  basis  of  representation. 

The  other  question,  which  was  only  second  in  impor 
tance  to  the  first,  was  the  attempt  to  do  away  with  the 
old  county  court  system  composed  of  magistrates  ap 
pointed  by  the  Governor  with  the  power  of  self-perpetua 
tion  in  the  court.  They  were  generally  men  of  the 
highest  intelligence,  probity,  and  character;  not  learned 
in  the  law  perhaps,  in  the  modern  sense,  but  saturated 
with  the  principles  of  natural  justice  and  equity.  It  was 
regarded  by  many  as  the  most  conservative  influence  in 
the  organization  of  the  State  government;  and  the  at 
tempt  to  overturn  it  was  met  by  the  best  ability  of  the 
Convention. 

Judge  Marshall  and  John  Randolph  of  Roanoke  led 
the  fight  to  sustain  it, —  and  they  were  successful. 

At  a  later  day,  speaking  of  the  tenure  of  office  of  the 
judges,  and  the  necessity  for  their  independence,  Judge 
^Marshall  used  this  language  (page  616  of  the  Debates) : 
"Advert,  sir,  to  the  duties  of  a  judge, — he  has  to  pass  be 
tween  the  government  and  the  man  whom  that  govern 
ment  is  prosecuting;  between  the  most  powerful  individ 
ual  in  the  community  and  the  poorest  and  most  unpopular. 
It  is  of  the  last  importance  that  in  the  exercise  of  these 
duties  he  should  observe  the  utmost  fairness.  Need  I 


265  Massachusetts  —  Address  of  Professor  Tucker. 

press  the  necessity  of  this?  Does  not  every  man  feel 
that  his  own  personal  security  and  the  security  of  his 
property  depends  on  that  fairness  ?  The  judicial  depart 
ment  comes  home  in  its  effects  to  every  man's  fireside  — 
it  passes  on  his  property,  his  reputation,  his  life,  his  all. 
Is  it  not  to  the  last  degree  important  that  he  should  be 
rendered  perfectly  and  completely  independent  with 
nothing  to  influence  or  control  him  but  God  and  his  con 
science  ?  " 

Later  on,  in  advocacy  of  the  principle  of  the  tenure  of 
judicial  position  to  be  for  good  behavior  (page  619  of  the 
Debates),  he  used  this  memorable  language :  "  Will  the 
gentleman  recollect  that,  in  order  to  secure  the  adminis 
tration  of  justice,  judges  of  capacity  and  of  legal  knowl 
edge  are  indispensable.  And  how  is  he  to  get  them? 
How  are  such  men  to  be  drawn  off  from  a  lucrative  prac 
tice?  "Will  any  gentleman  of  the  profession,  whoso  prac 
tice  will  secure  him  a  comfortable  independence,  leave 
that  practice  and  come  to  take  an  office  which  may  be 
taken  from  him  the  next  day  ?  You  may  invite  them, 
but  they  will  not  come.  You  may  elect  them,  but  they 
will  not  accept  the  appointment.  You  don't  give  salaries 
that  will  draw  respectable  men,  unless  by  the  certainty 
of  permanence  connected  with  them;  but  if  they  may  be 
removed  at  pleasure,  will  any  lawyer  of  distinction  come 
upon  your  bench?  No,  sir.  I  have  always  thought,  from 
my  earliest  youth  till  now,  that  the  greatest  scourge  an 
angry  heaven  ever  inflicted  upon  an  ungrateful  and  sin 
ning  people  was  an  ignorant,  a  corrupt,  or  a  dependent 
judiciary.  '•>  Will  you  draw  down  this  curse  upon  Vir 
ginia?  Our  ancestors  thought  so,  and  we  thought  so  till 
very  lately,  and  I  trust  the  vote  of  this  day  will  show 
that  we  think  so  still."  The  Constitution  adopted  con- 


John  Marshall  Memorial.  266 

tains  a  provision  for  judicial  tenure  during  good  be 
havior. 

It  would  be  exceeding  the  bounds  of  truth  to  affirm 
that  Judge  Marshall  was  an  orator  in  the  sense  in  which 
that  word  is  ordinarily  used ;  but  if  the  power  to  control 
and  convince  men  by  the  presentation  of  one's  views  may 
be  regarded_as^  oratory,  he  may  justly  be  placed  in  that 
category.     Areputable  writer  has  well   described  his 
powers   as   an   orator   in  this  Convention:  "There  are 
hundreds  yet  living  who  can   recall  with  delight  the 
modest  and  the  deep,  thoughtful  lines  of  his  benignant 
face, —  those    piercing  black  eyes  which  never  let  the 
image  of  a  friend  any  more  than  the  semblance  of  an 
argument  escape  his  vision,  and  his  lofty  figure  clothed 
in  the  plainest  dress  of  an  ordinary  citizen,  and  mingling 
constantly  and  kindly  with  his  fellow-men  in  the  street, 
in  the  market,  on  the  quoit-ground,  or  reverently  bent  in 
the  humblest  posture  at  the  Throne  of  Grace.     But,  in 
timate  as  was  his  knowledge  of  the  human  heart,  gath 
ered  from  a  long  experience  in  the  camp  and  at  the  bar, — 
those  fruitful  schools  of  human  nature,  —  it  was  not  by 
appeals   to   the   interests  and   to   the   passions -of  men 
that  he  sought  to  lay  the  stress  of  his  public  efforts. 
Indeed,  so  utterly  did  he  disregard  all  such  appeals,  that 
helaunched  in  the  opposite  extreme,  and,  as  if  conscious 
of  the  true  sources  of  his  power,  he  avoided  everything 
that  might  influence  the  mind  through  the  eye.    Indeed, 
like  his  friend  Monroe,  he  had  no  manner  at  all  as  a  pub 
lic  speaker,  if  by  manner  we  mean  something  deliberate 
aiid  studied  in  action;  and  he  might  be  as  readily  ex 
pected  to  speak  in  a  court-room  with  his  hands  on  a 
chair,  or  with  one  of  his  legs  over  its  back,  or  within  two 
feet  of  a  presiding  officer  in  a  public  body,  as  in  any 
other  way. 


267  Massachusetts  —  Address  of  Professor  Tucker. 

.  .  .  "In  the  common  parts  of  his  discourse  he  spoke 
with  a  serious  earnestness  and  with  an  occasional  swing 
of  his  right  arm,  but  when  he  became  animated,  as  we 
once  beheld  him,  by  the  delivery  of  his  theme,  which 
was  the  true  import  of  certain  words  of  the  Federal  Con 
stitution  relating  to  the  judiciary,  and  by  the  presence  of 
several  of  the  most  astute  men  of  that  age  who  were  op 
posed  to  him  in  debate,  and  who  were  watching  him  to 
his  destruction,  he  rose  to  the  highest  pitch  of  pathetic 
declamation,  thoroughly  blended  with  argument, —  the 
most  powerful  of  all  declamation;  and  he  might  have 
been  seen  leaning  forward  with  both  arms  outstretched 
towards  the  chair,  as  if  in  the  act  of  calling  down  ven 
geance  on  his  opponents,  or  of  deprecating  some  enor 
mous  evil  which  was  about  to  befall  his  country ;  while 
the  tones  of  his  voice,  exalted  above  his  usual  habit,  were 
in  plaintive  unison  with  his  action.  .  .  .  The  triumph 
of  Marshall's  eloquence  was  heightened  by  the  almost 
unequaled  talents  which  were  arrayed  against  him  —  by 
the  subtle  and  terrible  strength  of  Tazewell;  by  the 
severe  and  sustained  logic  of  Barbour;  by  the  versatile 
and  brilliant  but  vigorous  sallies  of  Randolph,  whose 
fame  as  the  chairman  of  the  judiciary  committee  of 
1802,  which  reported  to  the  House  of  Kepresentatives  the 
bill  of  repeal  of  the  law  passed  by  the  Federalists  alter 
ing  the  judiciary  system,  was  at  stake;  and  by  the  ex 
traordinary  skill  and  blasting  sarcasm  of  Giles,  height 
ened  and  stimulated  by  the  recollections  of  ancient  feuds 
which  still  burned  brightly  in  the  breast  of  his  antago 
nist  and  in  his  own  (and  from  a  sense  of  personal  repu 
tation  which  was  involved  in  the  passage  of  the  act  of 
repeal  in  the  House  of  Representatives,  which  he  mainly 
carried  through  that  body).  Of  all  the  scenes  which  oc- 


John  Marshall  Memorial.  268 

curred  in  the  Convention  of  1829-30,  varied,  animated, 
and  intellectual  as  they  were,  whether  we  respect  the 
exciting  nature  of  the  topic  in  debate,  the  zeal,  the  abili 
ties,  the  public  service,  the  venerable  age  and  the  his 
torical  reputation  of  those  who  engaged  in  the  discus 
sion, —  all  enhanced  in  interest  by  the  unequal  division 
of  the  combatants  in  the  field, —  this  was,  perhaps,  the 
most  striking  which  occurred  in  that  body." 

The  whole  world  lays  its  tribute  of  admiration  at  the 
feet  of  John  Marshall  for  his  great  judgments.  Virginia 
in  this  act  joins  most  reverently.  But  without  dispar 
agement  of  his  great  services  to  the  country  and  to  the 
world  in  his  lofty  position  as  Chief  Justice,  she  lays  her 
sincercst  tribute  of  affection  upon  his  grave  this  day  as 
her  peerless  citizen.-  His  life,  Mr.  Chairman,  was  a  truly 
noble  one.  It  wa^  on  the  highest  plane.  His  character 
had  no  spot  or  blemish  upon  it  that  sweet  charity  would 
now  consign  to  oblivion,  but  it  was  robust,  well-rounded, 
and  symmetrical, —  open  as  day.  He  was  dutiful  as  a 
son;  affectionate  as  a  parent;  tender  as  a  husband;  cour 
ageous  as  a  soldier;  honest  and  able  as  a  lawyer;  wise  as 
a  legislator;  profound  as  a  judge;  he  measured  up  to  the 
highest  standard  of  American  citizenship,  and  furnishes 
a  noble  example  to  the  youth  of  our  country  for  all  com 
ing  generations.  He  possessed  a  mind  that  created  some 
thing,  a  heart  that  adored  something,  a  faith  that  be 
lieved  something,  a  hope  that  expected  something,  a  life 
that  was  lived  for  something,  and  a  patriotism  that  was 
ready  to  die  for  something. 

May  we  not,  on  this  day  appointed  for  honoring  his 
memory,  unite  with  our  brethren  throughout  the  Union 
in  grateful  thankfulness  to  God  that  he  gave  to  the 


269  Massachusetts  —  Address  of  Richard  Olney. 

country  such  a  patriot,  to  the  State  such  a  citizen,  to  the 
administration  of  the  law  such  a  magistrate,  to  Chris 
tianity  such  a  defender,  and  to  those  who  loved  him  such 
a  friend  ? 


Remarks  of  President  Gray,  Introducing  Hon.  Richard 

Olney. 

In  this  inclement  weather  we  have  been  dwelling 
to-day  IE  imagination  in  a  more  southern  clime,  but  it  is 
well  before  we  part  that  our  own  little  corner  of  the  land 
should  not  be  forgotten.  I  am  going  to  call  upon  a  New 
Englander  of  New  Englanders,  one  who  in  office  knew 
how  to  bring  the  whole  power  of  the  United  States  to 
sustain  the  majesty  of  her  law  and  the  judgments  of  her 
courts  (loud  applause),  one  who  is,  perhaps,  no  worse 
a  representative  of  New  England,  because  he  does  not 
always  go  with  the  majority  (laughter  and  applause)  but 
one  whom,  whether  we  agree  with  him  or  not,  we  are 
always  glad  to  hear  and  of  whom  we  are  all  proud.  I 
call  upon  the  Hon.  Bichard  Oiney.  (Loud  applause,  the 
audience  rising.) 

Address  of  Richard  Olney. 

I  have  felt  much  hesitation  about  taking  even  a  small 
part  in  these  exercises.  The  theme  is  too  large  for  treat 
ment  in  short  space ;  it  must  suffer  at  the  hands  of  who 
ever  undertakes  it  without  a  command  of  time  and  leisure 
which  but  few  favored  mortals  possess;  it  has  been  spoken 
to  and  written  of  by  orators,  historians,  and  statesmen 
for  nearly  seventy  years;  and  it  is  to-day  freshly  and 
elaborately  dealt  with  throughout  the  Union  by  many  of 
its  most  eminent  citizens.  Indeed,  for  present  purposes, 


John  Marshall  Memorial.  270 

what  could  be  more  intimidating  than  what  has  been 
just  going  on  in  this  very  community;  than  to  know  that 
the  interesting  utterances  to  which  we  have  just  listened 
only  supplement  a  morning  of  official  and  judicial  elo 
quence  at  the  Court  House  and  an  afternoon  of  learned 
dissertation  at  Sanders  Theatre  ?  In  depressing  circum 
stances  like  these,  I  can  only  hope  for  indulgence  if  you 
find  me  reiterating  a  thrice-told  tale  and  can  promise  noth 
ing  except  to  make  your  ordeal  tolerably  brief. 

I  wish  to  remark  upon  but  three  things  connected  with 
the  career  of  John  Marshall.  It  is  not  obvious  what  most 
of  us  are  born  for,  nor  why  almost  any  one  might  as  well 
not  have  been  born  at  all.  Occasionally,  however,  it  is 
plain  that  a  man  is  sent  into  the  world  with  a  particular 
work  to  perform.  If  the  man  is  commonly,  though  not 
always,  unconscious  of  his  mission,  his  contemporaries 
are  as  a  rule  equally  blind,  and  it  remains  for  after  gen 
erations  to  discover  that  a  man  has  lived  and  died  for 
whom  was  set  an  appointed  task,  who  has  attempted  and 
achieved  it,  and  who  has  made  the  whole  course  of  his 
tory  different  from  what  it  would  have  been  without  him. 
John  Marshall  had  a  mission  of  that  sort  to  whose  suc 
cess  intellect  and  learning  of  the  highest  order  as  well  as 
special  legal  ability  and  training  might  well  have  proved 
inadequate.  Yet  —  the  mission  being  assumed  —  the  first 
thing  I  wish  to  note,  and  the  wonderful  thing,  is  that  to 
all  human  appearances  Marshall  was  meant  to  be  denied 
anything  like  a  reasonable  opportunity  to  prepare  for  it. 
For  education  generally,  for  instance,  he  was  indebted 
principally  to  his  father,  a  small  planter,  who  could  have 
snatched  but  little  leisure  from  the  daily  demands  of  an 
exacting  calling  and  presumably  could  not  have  spent  all 
that  little  on  the  eldest  of  his  fifteen  children.  The  pa- 


271  Massachusetts  —  Address  of  Richard  Olney. 

rental  tuition  was  supplemented  only  by  the  son's  attend 
ance  for  a  short  period  at  a  country  academy  and  by  the 
efforts  of  a  couple  of  Scotch  clergymen,  each  of  whom 
successively  tutored  him  for  about  a  year  and  in  that  time 
did  something  to  initiate  him  into  the  mysteries  of  Latin. 
Such,  briefly  put,  was  the  entire  Marshall  curriculum 
in  the  way  of  general  education.  It  was  all  over  before 
he  was  eighteen,  when  the  shadow  of  the  revolutionary 
struggle  began  to  project  itself  over  the  land  and  Mar 
shall  joined  the  Virginia  militia  and  became  immersed  in 
military  affairs.  As  lieutenant  of  militia  and  lieutenant 
and  captain  in  the  Continental  army,  he  was  in  active 
service  during  almost  the  entire  war,  fought  at  Brandy- 
wine,  Germantown,  and  Monmouth,  was  half-starved  and 
half-frozen  at  Yalley  Forge,  and  during  that  terrible 
winter  ate  his  share  of  the  Dutch  apple  pies  ever  since 
historically  famous  for  their  capacity  to  be  thrown  across 
a  room  without  damage  to  either  inside  or  outside. 
Marshall's  opportunities  as  a  student  of  law  were  on  a 
par  with  his  educational  opportunities  generally.  Though 
he  is  said  to  have  begun  his  legal  studies  when  he  was 
eighteen,  they  were  at  once  and  continuously  interrupted 
by  the  military  pursuits  which  occupied  him  until  near 
the  close  of  the  war.  The  only  exception  to  be  noted  is 
that,  in  an  interval  between  the  expiration  of  one  military 
commission  and  the  issuance  of  another,  he  attended  a 
course  of  law  lectures  by  Chancellor  Wythe  of  William 
and  Mary  College.  Meagre  as  the  knowledge  and  train 
ing  thus  acquired  would  seem  to  be,  they  sufficed  to  pro 
cure  him  his  license,  and  in  1780  or  '81  he  began  to 
practice.  In  view  of  what  he  subsequently  became  and 
achieved,  it  would  be  a  natural  supposition  that  during 
the  next  twenty  years  he  must  have  been  exclusively  de- 


John  Marshall  Memorial.  272 

voted  to  his  profession  and  by  the  incessant  and  uninter 
rupted  study  and  application  of  legal  principles  must  have 
made  up  for  the  deprivations  of  earlier  years.  Nothing 
could  be  farther  from  the  truth.  During  those  twenty 
years  he  was  almost  constantly  in  public  employment,  and 
in  public  employment  of  an  exciting  and  engrossing  nat 
ure.  In  this  period  arose  and  were  settled  the  novel  and 
difficult  questions  following  in  the  wake  of  the  War  of 
Independence,  questions  of  vital  moment  to  each  State  as 
well  as  to  the  country  at  large.  Marshall  was  in  the 
thick  of  every  discussion  and  every  struggle.  He  was  a 
member  of  the  Virginia  Assembly;  an  executive  coun 
cillor;  general  of  militia;  delegate  to  the  State  Conven 
tion  which  adopted  the  Federal  Constitution;  member  of 
Congress;  envoy  to  France;  and  when  he  was  appointed 
Chief  Justice  at  the  end  of  January,  1801,  he  was  Secre 
tary  of  State  in  John  Adams's  Cabinet  and  continued  to 
act  as  such  until  after  Jefferson's  inauguration.  Durin^ 

O  O 

this  entire  period  I  doubt  if  there  were  any  three  consecu 
tive  years  during  which  Marshall  was  giving  his  entire 
time  and  attention  to  the  practice  of  his  profession. 

Contrast  the  poverty  of  this  preparation  with  the  great 
ness  of  the  work  before  him.  He  probably  did  not  ap 
preciate  it  himself  —  it  is  certain,  I  think,  that  his  fellow- 
citizens  and  contemporaries  were  far  from  appreciating 
it.  To  most  of  them  the  State  was  closer,  dearer,  and 
vastly  more  important  than  the  Nation  —  by  all  of  them 
the  significance  of  the  place  of  the  judiciary  in  the  new 
government  was  but  dimly,  if  at  all,  perceived  —  while 
to  the  world  at  large  the  judiciary  of  a  new  Nation  of 
thirteen  small  States  strung  along  the  North  Atlantic  sea 
board,  comprising  a  population  of  some  four  million  souls, 


273  Massachusetts  —  Address  of  Richard  Olney. 

necessarily  seemed  a  tribunal  of  the  smallest  possible  ac 
count.  To-day  the  "  American  Empire,"  as  Marshall  him 
self  was  the  first  to  call  it,  with  its  immense  territory  and 
its  seventy-five  millions  of  people,  is  a  negligible  factor 
nowhere  on  earth,  and  its  National  Supreme  Court  ranks 
as  the  most  exalted  and  potent  judicial  tribunal  that 
human  skill  has  yet  organized.  But  the  work  Marshall 
was  destined  to  undertake  can  be  estimated  only  by  con 
sidering  its  inherent  character.  All  minor  features  being 
disregarded,  there  are  two  of  capital  importance.  In 
the  first  place,  here  was  a  ship  of  state  just  launched 
which  was  to  be  run  rigidly  by  chart  —  by  sailing  direc 
tions  laid  down  in  advance  and  not  to  be  departed  from 
whatever  the  winds  or  the  waves  or  the  surprises  or 
perils  of  the  voyage  —  in  accordance  with  grants  and  lim 
itations  of  power  set  forth  in  writing  and  not  to  be  violated 
or  ignored  except  at  the  risk  and  cost  of  revolution  and 
civil  war.  The  experiment  thus  inaugurated  was  unique 
in  the  history  of  civilized  peoples  and  believed  to  be  of  im 
mense  consequence  both  to  the  American  people  and  to  the 
human  race.  But  there  were  also  wheels  within  wheels, 
and  the  experiment  of  government  according  to  a  writ 
ten  text  entailed  yet  another,  namely,  that  of  a  judicial 
branch  designed  to  keep  all  other  branches  within  their 
prescribed  spheres.  To  that  end  it  was  not  enough  to 
make  the  judicial  branch  independent  of  the  legislative 
and  executive  branches.  It  was  necessary  to  make  it  the 
final  judge  not  only  of  the  powers  of  those  other  depart 
ments,  but  of  its  own  powers  as  well.  Thus  the  national 
judiciary  became  the  keystone  of  the  arch  supporting  the 
new  political  edifice  and  was  invested  with  the  most  ab 
solute  and  far-reaching  authority.  Since  almost  all  leg- 
VOL.  I  — 18 


John  Marshall  Memorial.  274 

islative  and  executive  action  can  in  some  way  be  put  in 
issue  in  a  suit,  it  is  an  authority  often  involving  and  con 
trolling  matters  of  high  State  policy  external  as  well  as 
internal.  At  this  very  moment  is  it  not  believed,  indeed 
proclaimed  in  high  quarters,  that  the  question  of  Asiatic 
dependencies  for  the  United  States  and  incidentally  of 
its  foreign  policy  generally,  practically  hinges  upon  judg 
ments  of  the  National  Supreme  Court  in  cases  requiring 
the  exercise  of  its  function  as  the  final  interpreter  of  the 
Constitution  ?  What  judicial  tribunal  in  Christendom  is 
or  has  ever  been,  directly  or  indirectly,  the  arbiter  of 
issues  of  that  character? 

It  was  a  national  judiciary  of  this  sort  of  which  John 
Marshall  became  the  head  one  hundred  years  ago.  That 
he  dominated  his  court  on  all  constitutional  questions  is 
indubitable.  That  he  exercised  his  mastery  with  mar 
velous  sagacity  and  tact,  that  he  manifested  a  profound 
comprehension  of  the  principles  of  our  constitutional  gov 
ernment  and  declared  them  in  terms  unrivaled  for  their 
combination  of  simplicity  and  exactness,  that  he  justified 
his  judgments  by  reasoning  impregnable  in  point  of  logic 
and  irresistible  in  point  of  persuasiveness, —  has  not  all 
this  been  universally  conceded  for  the  two  generations 
since  his  death  and  will  it  not  be  found  to  have  been 
universally  voiced  to-day  wherever  throughout  the  land 
this  centenary  has  been  observed  ?  "  All  wrong,"  said 
John  Randolph  of  one  of  Marshall's  opinions  — "  all 
wrong  —  but  no  man  in  the  United  States  can  tell  why 
or  wherein  he  is  wrong."  If  we  consider  the  work  to 
which  he  was  devoted,  it  must  be  admitted  to  have  been 
of  as  high  a  nature  as  any  to  which  human  faculties  can 
be  addressed.  If  we  consider  the  manner  in  which  the 
work  was  done,  it  must  be  admitted  that  anything  better 


275  Massachusetts  —  Address  of  Richard  Olney. 

in  the  way  of  execution  it  is  difficult  to  conceive.  And 
if  we  consider  both  the  greatness  of  the  work  and  the 
excellence  of  its  performance  relatively  to  any  opportu 
nities  of  Marshall  to  duly  equip  himself  for  it,  he  must 
be  admitted  to  be  one  of  the  exceptional  characters  of 
history  seemingly  foreordained  to  some  grand  achieve 
ment  because  fitted  and  adapted  to  it  practically  by 
natural  genius  alone. 

If  it  be  true  —  as  it  is,  beyond  cavil  —  that  to  Washing 
ton  more  than  to  any  other  man  is  due  the  birth  of  the 
American  nation,  it  is  equally  true  beyond  cavil  that  to 
Marshall  more  than  to  any  other  man  is  it  due  that  the 
nation  has  come  safely  through  the  trying  ordeals  of  in 
fantile  weakness  and  youthful  effervescence  and  has 
triumphantly  emerged  into  well  developed  and  lusty 
manhood.  Had  the  Constitution  at  the  outset  been  com 
mitted  to  other  hands,  it  could  have  been  and  probably 
would  have  been  construed  in  the  direction  of  minimizing 
its  scope  and  efficiency  —  of  dwarfing  and  frittering  away 
the  powers  conferred  by  it  and  of  making  the  sovereignty 
of  the  nation  but  a  petty  thing  as  compared  with  the 
sovereignty  of  the  State.  Under  Marshall's  auspic< 
however,  and  his  interpretation  and  exposition  of  the 
Constitution,  the  sentiment  of  nationality  germinated 
and  grew  apace,  a  vigorous  national  life  developed,  and 
an  indestructible  union  of  indestructible  States  became 
a  tangible  and  inspiring  entity,_jipj)ejilmg  alike  to_the 
affections  and  the  reason  of  men,  and  in  which  thus  far 
at  least  they  have  seen  both  the  ark  of  their  safety  and 
an  ideal  for  which  willingly  to  lay  down  their  lives. 
I  refer  thus  to  the  past  because  the  past  is  assured  and 
because  there  are  those  who  look  to  the  future  with  ap 
prehension  —  who  do  not  disguise  their  fear  that  the  lie- 


John  Marshall  Memorial.  276 

public  of  Washington  and  Marshall  is  now  suffering  a 
mortal  assault  not  from  without  but  from  within  —  not 
from  "  foreign  levy  "  but  from  "  malice  domestic."  Those 
who  take  this  view  include  men  of  both  the  great  political 
parties  and  men  who  deservedly  command  the  highest 
respect  and  deference  from  their  fellow-countrymen. 
Nevertheless,  they  must  not  be  allowed  to  lessen  our  faith 
in  the  final  triumph  of  the  fundamental  ideas  which  un 
derlie  our  national  life.  The  fathers  did  not  build  upon  a 
quicksand  but  upon  a  rock  —  else  the  structure  they 
reared  could  hardly  have  survived  foreign  aggression,  a 
disputed  succession,  and  a  civil  war  the  greatest  and 
most  sanguinary  of  modern  times.  But  their  work  was 
by  human  hands  for  human  use,  and  even  their  wisdom 
could  not  guard  it  against  the  follies  and  the  sins  of  all 
future  custodians.  That  gross  blunders  have  been  com 
mitted,  blunders  unaccountable  in  their  origin  and  as  yet 
unfathomable  in  their  consequences,  may  be  admitted, 
is  indeed  sorrowfully  admitted  by  many,  if  not  a  ma 
jority,  of  those  who  have  nevertheless  since  contributed 
to  keep  their  official  authors  in  power.  But  blunders, 
however  inexcusable  or  apparently  injurious,  must  be 
deemed  irretrievable  only  in  the  last  resort,  and  Heaven 
forbid  any  admission  that  the  American  Eepublic  can 
be  wrecked  by  any  one  or  even  two  administrations. 
The  truth  here,  as  almost  always,  lies  between  ex 
tremes  —  between  ultra-conservatives  and  pessimists  on 
the  one  hand  and  ultra-progressives  and  optimists  on  the 
other.  The  former  would  put  back  the  hands  of  the 
clock  a  hundred  years  — would  have  us  live  and  act  as  if 
the  conditions  of  the  Washington  and  Marshall  era  were 
still  about  us  —  in  effect  would  have  us  tear  up  the  rail 
road  and  sink  the  steamship  and  return  the  lightning  to 


277  Massachusetts  —  Address  of  Richard  Olney. 

the  heavens  whence  Franklin  brought  it  down.  The  lat 
ter  would  have  us  believe  that,  to  act  well  our  part  on  the 
world-wide  stage  which  alone  limits  the  activities  of  mod 
ern  civilized  states,  we  must  ape  the  fashionable  interna 
tional  follies  and  vices  of  the  period  even  to  the  point  of 
warring  upon,  subjugating,  and  exploiting  for  trade  pur 
poses  eight  millions  of  alien  peoples  in  the  Pacific  seas 
seven  thousand  miles  from  our  own  shores.  Between 
these  extremes  lies  the  path  of  honor,  of  morality,  of 
safety,  and  of  patriotism,  and  notwithstanding  present 
aberrations  the  American  people  may  be  absolutely 
trusted  sooner  or  later  to  find  it  and  to  walk  in  it.  They 
will  certainly  not  forget  that  this  is  the  dawn  of  the 
twentieth,  not  of  the  nineteenth  century.  They  will  just 
as  certainly  determine  that  to  be  in  touch  with  the  best 
thought  and  temper  of  the  time,  to  be  the  most  truly 
progressive  of  all  peoples,  to  do  every  duty  and  fulfill 
every  function  required  by  its  high  place  in  the  world  — 
they  will  certainly  determine  that  to  do  and  to  be  all 
this  —  neither  means  that  the  American  nation  must  imi 
tate  the  most  questionable  practices  of  other  states  nor 
requires  any  abandonment  of  American  principles  or 
American  ideals.  To  believe  or  to  hold  otherwise  is  to 
despair  of  the  Eepublic,  and  to  despair  of  the  Eepublic 
is  to  lose  faith  in  humanity  and  in  the  future  of  the  race. 
The  incalculable  debt  of  the  country  to  the  two  great 
Virginians,  impossible  of  repayment,  can  never  be  too 
often  or  too  emphatically  recognized  by  the  entire  body 
of  the  American  people.  Upon  the  bar,  however,  de 
volves  an  especial  duty,  namely,  to  see  to  it  that  the 
merits  of  its  incomparable  chief  are  not  obscured  by  the 
showier  deeds  of  warriors  and  statesmen.  The  observ 
ance  of  this  day,  therefore,  by  the  lawyers  of  the  country 


John  Marshall  Memorial.  278 

generally  is  eminently  appropriate,  while  we  in  this  cor 
ner  of  the  land  are  exceptionally  favored  in  that  Virginia 
has  lent  us  for  our  celebration  one  of  the  foremost  of  her 
lawyers  and  citizens.  In  recognition  of  the  honor  of  his 
presence  and  in  appreciation  of  the  immense  services  of 
his  native  State  to  the  cause  of  a  stable  and  coherent 
nationality,  I  propose  that  the  company  rise  and  drink 
to  the  ever-increasing  prosperity  of  the  Commonwealth 
of  Virginia  and  to  the  good  health  and  long  life  of  her 
distinguished  representative  on  this  occasion. 


STATE  OF  RHODE  ISLAND. 

The  celebration  by  the  Ehode  Island  Bar  Association, 
on  the  fourth  day  of  February,  1901,  of  the  one  hundredth 
anniversary  of  the  installation  of  John  Marshall  as  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  was 
one  of  the  most  notable  events  in  the  history  of  the  As 
sociation. 

Brown  University  joined  in  the  celebration,  which  took 
place  at  three  o'clock  in  the  afternoon,  in  Sayles  Memo 
rial  Hall,  tendered  by  the  University  for  the  purpose. 
The  Lieutenant-Governor,  the  Mayor  of  the  City  of  Prov 
idence,  Ex-Chief  Justice  Durfee,  and  the  Judges  of  the 
United  States  and  State  courts  were  present.  The  ex 
ercises  were  opened  by  prayer  by  the  President  of  Brown 
University,  William  H.  P.  Faunce,  after  which  the  Presi 
dent  of  the  Khode  Island  Bar  Association,  Hon.  Francis 
Colwell,  made  the  opening  address,  and  at  the  close  in 
troduced  Hon.  Le  Baron  B.  Colt,  Judge  of  the  United 
States  Circuit  Court,  who  delivered  the  oration. 

Introductory  Address  by  Hon.  Francis  Colwell. 

At  the  invitation  of  the  Rhode  Island  Bar  Association, 
this  notable  audience  has  assembled  here  to-day  to  unite 
in  commemoration  of  the  one  hundredth  anniversary  of 
the  day  when  the  great  guardian  genius  of  our  Constitu 
tion,  John  Marshall,  commenced  his  illustrious  career  of 
nearly  thirty-five  years  as  Chief  Justice  of  the  Supreme 
Court  of  the  United  States. 


John  Marshall  Memorial.  280 

Said  our  great  Judge  Story,  upon  the  death  of  Judge 
Marshall  in  1835 :  "  The  Constitution  of  the  United  States 
owes  more  to  John  Marshall  than  to  any  other  single 
mind,  for  its  true  interpretation  and  vindication."  To 
day,  after  the  lapse  of  more  than  sixty  years,  that  opin 
ion  is  concurred  in  all  over  the  civilized  world.  For  an 
instant,  consider  what  contest  in  the  history  of  any  peo 
ple  can  be  compared  with  that  waged  over  the  adoption 
of  our  Constitution  in  the  days  of  the  original  thirteen 
States;  what  one  fraught  with  such  portentous  results? 

Adopt  a  Constitution,  and  a  nation  was  born  to  us. 
Reject  the  Constitution,  we  were  "dissevered,  discord 
ant  and  belligerent  States,"  an  easy  prey  for  every  for 
eign  foe,  and  open  to  foreign  conquest  and  subjugation.  It 
is  scarcely  possible  for  us  now  to  measure  or  comprehend 
the  stupendous  import  of  that  struggle.  But  while  we 
shall  ever  glory  in  the  lives  of  those  who  were  inspired 
to  fight  and  win  for  us  in  that  great  contest  for  a  Con 
stitution,  let  us  not  forget  those  who  not  only  fought  for 
its  adoption,  but  defended  and  vindicated  it  to  all  the 
world. 

The  great  and  unique  glory  of  him  whom  we  meet  to 
honor  to-day  was  that  he  not  only  battled  for  the  adop 
tion  of  our  Constitution  against  formidable  opposition, 
but  after  its  adoption,  as  with  a  mind  inspired,  out  of  his 
own  brain,  with  no  precedent  to  guide,  so  interpreted  and 
supported  that  instrument  with  sound  invincible  opinions 
as  to  establish  it  beyond  all  molestation.  And  let  us  bear 
in  mind  that  the  establishment  of  that  Constitution  begot 
in  our  people  a  national  spirit  and  pride  of  national^, 
which  has  survived  all  shocks,  internal  and  external,  and 
to-day  so  pervades  our  whole  land  as  to  make  us  one  of 
the  impregnable  powers  of  the  earth. 


281  Rhode  Island—  Oration  of  Le  Baron  Colt. 

Let  us  here  and  now  give  thanks  that  John  Marshall 
of  Yirginia  is  the  John  Marshall  of  a  united  people,  join 
ing  to-day  under  the  Constitution  he  loved  and  lived  for, 
in  grateful  plaudits  to  his  memory. 

The  Rhode  Island  Bar  Association  early  voted  to  com 
memorate  the  day  in  pursuance  of  the  spirit  of  the  Amer 
ican  Bar  resolution.  I  desire  in  behalf  of  the  Khocle 
Island  Bar  Association  to  express  the  sincere  obligation 
we  feel  under  to  our  grand  alma  mater  for  its  proposi 
tion  to  unite  with  us  in  the  observance  of  the  day;  to  her 
we  are  indebted  for  the  use  of  this  spacious  and  beauti 
ful  Memorial  Hall,  affording  opportunity  to  all  to  par 
ticipate  in  this  celebration. 

In  furtherance  of  its  purpose  to  celebrate  this  day  in  as 
appropriate  a  manner  as  possible,  the  Khode  Island  Bar 
Association  extended  an  invitation  to  one  of  the  Judges 
of  the  United  States  Court,  whose  name  has  long  been 
familiar  to  us,  to  speak  to  us  of  John  Marshall  on  this 
occasion.  That  invitation  was  kindly  accepted,  and  I 
now  have  the  honor  and  pleasure  of  presenting  the  Hon. 
Le  Baron  Bradford  Colt,  United  States  Circuit  Judge. 

Oration  of  Le  Baron  Bradford  Colt. 

On  the  day  of  the  first  meeting  of  the  Supreme  Court 
of  the  United  States  at  the  city  of  Washington,  one  hun 
dred  years  ago  to-day,  John  Marshall  took  his  seat  as 
Chief  Justice.  This  day  has  been  appropriately  called 
"  John  Marshall  Day,"  and  it  is  a  fitting  time  for  the  Bar 
Associations,  the  Courts,  and  the  representatives  of  our 
seats  of  learning,  assembled  together,  to  recall  the  com 
manding  and  unique  position  the  great  Chief  Justice  oc 
cupies  in  our  constitutional  history,  and  to  remind  the 


John  Marshall  Memorial.  232 

people  of  the  inestimable  blessings  which  have  flowed 
from  his  judicial  labors.  It  is  also  fitting  for  the  Presi 
dent  of  the  great  Federal  Commonwealth  which  bears 
the  indelible  impress  of  his  genius,  to  request  the  Con 
gress  to  observe  with  appropriate  exercises  the  centen 
nial  anniversary  of  the  day  he  became  the  head  of  the 
Supreme  Court  and  began  his  immortal  work  of  upbuild 
ing  the  Constitution. 

It  was  recently  said  with  much  truth :  "  John  Marshall 
yet  remains  the  great  unlaureled  hero  of  early  American 
history."  His  work  is  not  generally  known  nor  fully 
appreciated.  Such  is  the  common  fate  of  the  highest 
judicial  achievements.  From  their  nature  they  do  not 
attract  popular  attention ;  and  yet  a  simple  entry  on  the 
docket  of  the  Supreme  Court  of  the  United  States  may 
affect  the  destiny  of  the  nation  more  than  Webster's 
reply  to  Hayne,  or  Dewey's  victory  in  Manila  Bay.  We 
live  under  a  government  of  law.  Our  supreme  law  is 
embodied  in  a  written  constitution,  and  the  judgments 
of  the  highest  court  on  constitutional  questions  may  in 
volve  the  very  existence  of  the  Federal  Union. 

The  life  of  Marshall  has  been  called  the  constitutional 
history  of  the  country  from  1801  to  1835.  He  set  and 
fixed  in  its  proper  place  the  keystone  of  the  beautiful  and 
symmetrical  arch  of  States  which  now  spans  a  continent. 
He  carried  the  Constitution  through  its  experimental  and 
formative  stages,  defined  its  enumerated  powers,  and 
clothed  them  with  an  authority  and  living  force  com 
mensurate  with  their  purpose.  He  "gradually  unveiled" 
the  Constitution,  in  the  words  of  Bryce,  "  till  it  stood  re 
vealed  in  the  harmonious  perfection  of  the  form  which 
its  framers  had  designed." 

We  are  to-day  what  the  Constitution  as  expounded  by 


283  Rhode  Island—  Oration  of  Le  Baron  Colt. 

John  Marshall  has  made  us.  The  character  and  suprem 
acy  of  the  National  Government  we  owe  largely  to  him. 
Marshall  was  more  than  the  interpreter  of  the  Constitu 
tion.  He  was  the  creator  of  constitutional  law  as  applied 
to  a  written  constitution.  His  luminous  judgments  de 
termined  whether  the  Constitution  should  stand  or  fall. 
They  proved  the  Constitution  created,  in  the  words  of 
Chief  Justice  Chase,  "  an  indestructible  Union,  composed 
of  indestructible  States."  They  demonstrated  that  a 
Federal  Union  strong  enough  to  perpetuate  itself,  and 
supreme  within  its  delegated  powers,  was  not  a  menace 
to  the  independence  of  the  States  nor  to  individual  lib 
erty,  but  was  the  guardian  and  shield  of  both.  They 
defined  the  relative  rights  of  the  States  and  the  Federal 
Government  under  the  Constitution,  involving  often  the 
momentous  question  of  sovereignty  —  the  fatal  rock  on 
which  Federal  Unions  are  broken  into  fragments.  They 
settled  beyond  challenge  or  debate  the  question  of  sover 
eignty  as  a  judicial  question  arising  under  the  Constitu 
tion.  The  only  right  to  dissolve  the  Union  which  re 
mained  with  the  States  after  these  adjudications  was  the 
right  of  revolution.  They  established  the  novel  and 
striking  feature  of  our  political  system  that  the  construc 
tion  and  interpretation  of  the  supreme  law  rests  with  the 
judiciary  department.  They  vindicated  the  supremacy 
of  the  Constitution  over  all  citizens  and  all  States.  They 
proved  beyond  question  that  the  Constitution  created  a 
government,  a  composite  republic,  a  nation ;  not  a  league, 
a  compact,  or  a  mere  confederacy.  They  undoubtedly 
preserved  the  Union  in  1861,  when  the  attempt  was  made 
to  settle  constitutional  questions  by  force  of  arms.  Had 
not  the  judgments  of  the  Supreme  Court,  during  the 
thirty-four  years  Marshall  was  Chief  Justice,  established 


John  Marshall  Memorial.  284 

the  supremacy  of  the  Constitution  as  opposed  to  the  doc 
trine  of  State  sovereignty,  the  Civil  "War  would  have 
been  a  war  of  conquest,  and  the  Federal  tie  forever  sev 
ered.  "  The  Southern  Confederacy,  as  the  embodiment 
of  political  ideas,"  says  Judge  Phillips,  "  surrendered  not 
to  Grant,  not  to  Sherman,  not  to  Thomas  or  to  Sheri 
dan,  but  to  the  statesman,  the  jurist  and  sage, —  John 
Marshall." 

The  decisions  of  Marshall  have  instilled  in  us  the  wor 
ship  of  the  Constitution.  They  have  built  up  a  national 
spirit.  They  have  not  led  to  the  consolidation  of  the 
States,  but  to  the  consolidation  of  national  sentiment. 
They  are  the  foundation  of  the  patriotism,  affection,  and 
pride  which  fill  all  our  hearts  as  we  look  upon  our  coun 
try  at  the  opening  of  a  new  century,  and  contemplate 
with  emotion  the  proud  position  she  occupies  among  the 
nations  of  the  earth.  They  have  elevated  our  form  of 
government  in  the  eyes  of  the  world,  and  disproved  the 
judgment  of  mankind  that  a  Federal  Commonwealth  is 
weak  and  unstable.  They  have  shown  that,  in  the  hands 
of  an  intelligent  people,  such  a  political  system  may  exist 
in  a  perfect  form  for  centuries,  that  it  may  extend  over 
a  vast  area,  peopled  by  different  races,  and  may  realize 
under  such  conditions  its  high  ideal  of  combining  the 
energy,  patriotism,  and  freedom  of  a  small  republic  with 
the  unity,  security,  and  power  of  a  great  empire.  Speaking 
of  Marshall's  decisions  in  an  address  before  the  American 
Bar  Association,  Edward  J.  Phelps  declared:  "They 
passed  by  universal  consent,  and  without  any  further 
criticism,  into  the  fundamental  law  of  the  land,  axioms 
of  the  law,  no  more  to  be  disputed.  They  have  remained 
unchanged,  unquestioned,  unchallenged.  They  will  stand 
as  long  as  the  Constitution  stands.  And  if  that  should 


285  Rhode  Island—  Oration  of  Le  Baron  Colt. 

perish,  they  will  remain,  to  display  to  the  world  the 
principles  upon  which  it  rose,  and  by  the  disregard  of 
which  it  fell." 

Our  National  Government  was  moulded  and  shaped  by 
the  master  hand  of  John  Marshall.  To  comprehend  the 
character  and  greatness  of  his  work,  it  is  important  to 
understand  the  nature  and  tendency  of  the  form  of  gov 
ernment  which  was  organized  under  the  Constitution. 
Of  all  political  systems  a  Federal  Commonwealth  is  the 
most  complex,  delicate,  and  elaborate.  It  can  only  exist 
among  a  highly  civilized  people,  who  have  been  educated 
for  generations  in  the  art  of  civil  government.  It  is  an 
ideal  government.  It  is  founded  upon  a  compromise  be 
tween  opposite  political  systems,  and  it  seeks  to  combine 
the  advantages  of  each:  the  freedom  of  a  small  State 
with  the  unity  and  security  of  a  consolidated  empire.  It 
is  an  artificial  system ;  and,  inherently,  it  is  perhaps  the 
weakest  known  form  of  government.  Based  on  a  division 
of  sovereignty,  it  is  a  sovereign  within  sovereigns,  a  gov 
ernment  within  governments,  a  single  State  in  some  things 
and  many  States  in  other  things,  a  unit  in  its  external 
relations  and  on  matters  which  affect  the  general  welfare, 
and  composed  of  many  units  in  its  internal  government. 
States  and  cities  have  repeatedly  striven  to  realize  the 
Federal  idea,  but,  with  three  or  four  exceptions,  they  have 
been  successful  only  in  an  imperfect  degree,  and  for  a 
comparatively  short  period  of  time.  The  most  illustrious 
exception  is  the  United  States.  History  teaches  what  we 
should  expect  from  the  nature  and  artificial  character  of 
its  organization, —  that  the  ever  impending  danger  to  this 
political  system  is  not  consolidation,  but  the  weakness  of 
the  Federal  bond.  The  forces  which  tend  to  direct  the 
States  towards  the  central  union  are  less  strong  than  the 


John  Marshall  Memorial.  286 

forces  which  tend  to  drive  them  away  from  it,  because 
the  ties  of  citizenship,  local  interests,  and  a  common 
history  bind  the  people  to  the  State  and  its  autonomy. 

Federal  unions  have  always  perished  from  the  weak 
ness  of  the  Federal  tie,  or  from  conquest.  They  have 
never  grown  into  a  consolidated  state  through  the  de 
struction  of  the  separate  members  of  the  Union.  It  was 
the  weakness  of  the  Federal  tie  which  constantly  threat 
ened  the  disruption  of  the  Achaian  League.  And  the 
same  is  true  of  the  United  Netherlands.  The  Swiss 
Confederation  has  never  suffered  from  the  strength  of 
the  central  power,  but  rather  from  its  inborn  weakness. 
The  history  of  our  own  Federal  Union  is  familiar.  We 
know  that  for  three-quarters  of  a  century  after  the  adop 
tion  of  the  Constitution  the  grave  peril,  ever  present, 
sometimes  threatening,  and  once  only  averted  by  civil 
war,  was  disunion,  not  consolidation.  Historians  have 
always  recognized  the  inherent  weakness  of  a  Federal 
form  of  government.  It  was  not  surprising,  therefore, 
that  in  1863  the  eminent  English  historian  and  scholar, 
Freeman,  after  ten  years  of  research  and  reflection  on 
the  subject,  should  have  begun  the  publication  of  a  work 
entitled,  "History  of  Federal  Government  from  the 
Foundation  of  the  Achaian  League  to  the  Disruption  of 
the  United  States,"  in  which  he  prophesied  the  exchange 
of  ambassadors  between  the  United  States  and  the  Con 
federate  States  before  the  year  1869.  That  Freeman 
never  completed  his  work,  that  his  prophecy  proved  false, 
was  owing,  in  a  large  measure,  to  the  constitutional  de 
cisions  of  Chief  Justice  Marshall. 

Marshall's  early  conviction  of  the  supreme  danger 
which  confronted  the  Federal  Union  is  stated  by  Judge 
Story:  "  In  his  view  the  Kepublic  is  not  destined  to  per- 


287  Rhode  Island—  Oration  of  Le  Baron  Colt. 

ish,  if  it  shall  perish,  by  the  overwhelming  power  of  the 
National  Government,  but  by  the  resisting  and  counter 
acting  power  of  the  State  sovereignties."  Marshall  met 
and  overcame  the  danger,  except  when  revolution  is  at 
tempted,  by  incorporating  into  the  fundamental  law  the 
great  fact  that  our  Federal  Constitution  establishes  a 
perpetual  government  complete  within  itself. 

Marshall's  work  was  instrumental  in  building  up  a  na 
tional  spirit.  Constitutions  grow.  They  do  not  march 
alone.  National  spirit  is  the  product  of  growth.  It  is 
not  a  sudden  creation.  A  national  constitution,  to  be 
effective  and  fulfill  the  purpose  for  which  it  is  designed, 
must  reflect  the  spirit  and  temper  of  the  people.  The 
life  of  such  a  constitution  is  dependent  on  the  growth  of 
a  strong  national  sentiment.  Our  Federal  Constitution 
was  a  creation.  It  did  not  represent  a  growth.  It  was 
an  experiment,  a  hope,  a  dream.  The  people  were  full 
of  apprehension  and  dire  forebodings  as  to  the  result. 
They  saw  the  spectre  of  a  "  kingly  crown,"  the  destruc 
tion  of  the  States,  the  subversion  of  their  liberties.  They 
had  not  grown  up  to  the  National  idea.  Their  spirit  and 
temper,  their  laws  and  governments,  were  colonial.  Their 
interests  and  affections,  their  habits,  prejudices,  and  past 
history,  bound  them  to  the  States.  The  Colony  or  State 
was  their  mother,  the  centre  of  their  political  life,  and  to 
her  they  owed  allegiance  first  of  all.  They  were  citizens 
of  Rhode  Island,  Massachusetts,  Virginia, —  not  American 
citizens. 

Twelve  years  before  Marshall  took  his  seat,  the  Con 
stitution,  in  the  words  of  John  Quincy  Adams,  had  been 
"  extorted  from  the  grinding  necessity  of  a  reluctant  peo 
ple."  The  popular  vote  was  undoubtedly  against  its 
adoption.  The  spirit  of  the  times  is  well  illustrated  by 


John  Marshall  Memorial.  288 

Patrick  Henry,  who  exclaimed  in  the  Virginia  Conven 
tion  of  1788,  when  speaking  of  the  framers  of  the  Consti 
tution  :  "  "Who  authorized  them  to  speak  the  language  of 
'  TF<?,  the  people?  instead  of  'We,  ike  States?'  States  are 
the  characteristics  and  the  soul  of  a  confederation.  If  the 
States  be  not  the  agents  of  this  compact,  it  must  be  one 
great,  consolidated,  national  government,  of  the  people 
of  all  the  States."  It  is  seen  in  the  adoption  of  the  Con 
stitution  by  the  narrow  majority  of  three  in  the  New 
York  Convention,  ten  in  the  Virginia  Convention,  and 
nineteen  in  the  Massachusetts  Convention,  after  the  most 
strenuous  labors  of  its  advocates,  and  under  the  pressure 
brought  about  by  the  annihilation  of  public  credit,  the 
threatened  paralysis  of  commerce,  and  the  impending 
dissolution  of  the  Confederation.  It  is  shown  in  bitterly 
denouncing  as  unconstitutional  abuses  of  power  Wash 
ington's  proclamation  of  neutrality  in  1793  on  the  out 
break  of  the  war  between  England  and  the  French  Ee- 
public,  and  the  ratification  of  Jay's  treaty  with  England 
in  1795.  It  is  exhibited  in  the  statute  of  the  State  of 
Georgia  inflicting  the  penalty  of  death  on  any  one  who 
should  presume  to  enforce  the  process  of  the  Supreme 
Court  in  the  case  of  Chisholm  v.  State  of  Georgia,  where 
the  State  was  held  liable  for  the  payment  of  a  private 
claim;  and  in  the  case  of  the  United  States  v.  Peters, 
where  the  Governor  of  Pennsylvania  ordered  out  a 
brigade  of  militia  to  obstruct  the  service  of  a  Federal 
writ. 

"Not  a  year  went  by,"  says  McMaster,  "but  one  or 
more  States  bade  defiance  to  the  Federal  government." 
The  Virginia  and  Kentucky  resolutions  of  1798  and  1799 
also  bear  witness  to  the  want  of  national  sentiment;  so, 
in  like  manner,  the  proposed  amendment  to  the  Consti- 


289  Rhode  Island—  Oration  of  Le  Baron  Colt. 

tution  submitted  by  John  Randolph :  "  The  Judges  of  the 
Supreme  Court  and  all  other  courts  of  the  United  States 
shall  be  removed  by  the  President  on  the  joint  address 
of  both  Houses  of  Congress."  The  same  state  of  public 
feeling  is  indicated  in  the  popular  revulsion  against  the 
Federalists  which  soon  swept  that  party  out  of  power, 
and  later  out  of  existence,  and  installed  the  opposition, 
then  known  as  the  Republican  party,  thirty  days  after 
Marshall  became  Chief  Justice. 

For  thirty-four  years  Marshall's  decisions  vindicated 
the  necessity  and  value  of  the  Constitution.  They  incor 
porated  the  national  idea  into  the  fundamental  law,  and 
they  have  been  a  most  potent  factor  in  the  development 
and  promotion  of  the  intense  national  spirit  which  now 
pervades  the  country. 

Marshall's  soul  was  filled  with  the  spirit  of  the  Con 
stitution, —  the  soul  of  the  patriot  and  statesman  as  well 
as  jurist.  He  loved  the  Constitution.  It  was  his  life. 
His  judgment  and  affections  bound  him  to  it.  His  great 
intellectual  powers  were  devoted  to  it.  He  studied  and 
mastered  it.  It  was  his  constant  practice  to  read  and 
re-read  it.  He  knew  its  scope  and  purpose,  its  strength 
and  weakness,  its  powers  and  limitations,  its  checks  and 
balances.  He  was  with  it  at  its  creation.  He  had  stood 
by  its  cradle.  He  had  followed  its  history.  He  realized 
the  struggles  and  sufferings  which  preceded  its  birth,  and 
the  ruin  which  was  involved  in  its  fall.  As  he  wrote 
those  masterpieces  of  judicial  reasoning  there  seems  ever 
present  to  his  mind  the  beautiful  and  stately  preamble : 

"  We,  the  people  of  the  United  States,  in  order  to  form 

a  more  perfect  union,  establish  justice,  insure  domestic 

tranquillity,  provide  for  the  common  defense,  promote 

the  general  welfare,  and  secure  the  blessings  of  liberty 

VOL.  I  — 19 


John  Marshall  Memorial.  290 

to  ourselves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America." 

At  the  same  time,  his  thoughts  must  have  carried  him 
back  to  the  struggles  of  the  Revolutionary  War  in  which 
he  had  participated,— to  Brandy  wine,  Germantown,  and 
the  blood-tracked  snows  of  Valley  Forge;  to  his  efforts  in 
the  Virginia  Legislature  to  secure  a  more  efficient  Fed 
eral  Government;  to  his  exertions  in  the  convention  of 
his  own  State  in  behalf  of  the  adoption  of  the  Constitu 
tion;  to  his  triumphant  defense  of  Washington's  admin 
istration  in  the  Virginia  Legislature ;  to  the  insults  heaped 
upon  the  weakness  of  his  country  by  Talleyrand  during 
his  mission  to  France;  to  his  supreme  effort  at  a  critical 
time  in  sustaining  the  rightful  authority  of  the  Executive 
in  the  Congress  of  1799, —  these  and  other  great  events 
in  which  he  took  part  must  have  crowded  upon  his  mem 
ory,  animated  his  whole  being,  and  deepened  his  convic 
tion  that  the  Constitution  should  be  interpreted  in  the 
spirit  of  the  preamble,  and  so  secure  to  the  people  the 
blessings  of  liberty  and  a  perpetual  Union. 

The  Constitution  was  the  outcome  of  mutual  conces 
sions  and  many  compromises.  It  was  offered  to  the  peo 
ple  of  the  several  States  for  ratification  as  the  best  result 
attainable.  It  was  regarded  by  the  advocates  of  a  strong 
Union  as  too  weak,  and  by  those  of  a  weak  Union  as  too 
strong.  "Nobody  liked  all  its  provisions,  and  everybody 
feared  some  of  them."  It  was  adopted  by  its  framers  in 
a  spirit  of  harmony  and  patriotism,  and  lest  their  efforts 
might  prove  fruitless.  The  general  sentiment  of  the  Con 
vention  finds  expression  in  the  words  of  the  venerable 
Franklin:  "I  agree  to  this  Constitution  with  all  its 
faults  —  if  they  are  such  —  because  I  think  a  general  gov 
ernment  necessary  for  us.  I  consent  to  this  Constitution 


291  Rhode  Island—  Oration  of  Le  Baron  Colt. 

because  I  expect  no  better,  and  because  I  am  not  sure  it 
is  not  the  best.  The  opinions  I  have  had  of  its  errors  I 
sacrifice  to  the  public  g'ood." 

The  wisdom,  ripe  experience,  lofty  patriotism,  and  con 
structive  powers  of  that  remarkable  body  of  men  who 
framed  the  Constitution,  and  the  greatness  of  their  work, 
are  universally  recognized;  but  it  is  equally  true  that  the 
instrument  as  it  left  their  hands  was  not  a  finished  and 
complete  work.  The  Constitution  is  not  merely  the  work 
of  the  f ramers,  says  Mr.  Bryce,  "  but  the  work  of  the 
judges,  and  most  of  all  of  one  man,  the  great  Chief  Justice 
Marshall."  It  was  designed  as  the  framework  of  a  com 
paratively  novel  form  of  government,  and  not  as  a  com 
plete  code  of  laws.  It  was  a  skeleton,  and  the  heart  and 
brain  and  nerves  to  make  it  a  living  organism  were  in  a 
large  degree  supplied  by  Marshall's  construction  and  in 
terpretation.  The  powers  enumerated  are  brief.  They 
are  broad  in  scope  and  expressed  in  general  terms.  Much 
was  necessarily  left  to  implication,  and  much  was  design 
edly  omitted.  This  resulted  from  the  jealousy  of  the 
States  and  the  fear  of  consolidation  or  despotism.  The 
framers  realized  that  if  all  the  powers  essential  to  accom 
plish  the  great  purposes  of  the  instrument  had  been  fully 
set  out  it  probably  never  would1  have  been  ratified.  Had 
the  Constitution  contained  a  provision  that  the  Supreme 
Court  should  be  the  final  judge  of  the  fundamental  law 
and  of  its  own  jurisdiction,  with  the  power  to  nullify  an 
Act  of  Congress  or  a  State  statute,  its  adoption  would 
have  been  extremely  doubtful.  It  was  admitted  at  the 
time  that  its  success  or  failure  depended  upon  its  con 
struction.  This  was  the  great  work  which  fell  to  Mar 
shall,  and  the  saying  is  true:  "He  made  of  us  a  nation 
by  construction." 


John  Marshall  Memorial.  292 

The  fame  of  Marshall  rests  largely  upon  his  judicial 
judgments  adjusting  the  relative  powers  of  the  Federal 
Government  and  the  States,  under  the  Constitution.  The 
settlement  of  these  rights  has  always  been  the  battle 
ground  of  Federal  unions  and  a  menace  to  their  perpe 
tuity.  It  was  this  irrepressible  conflict  which  nearly 
wrecked  the  Confederation,  which  divided  the  convention 
that  framed  the  Constitution,  and  constantly  imperiled 
that  instrument  after  its  adoption.  The  people  under  a 
Federal  system  are  always  divided  into  two  great  political 
parties:  those  who  favor  and  those  who  oppose  a  strong 
central  authority;  those  who  believe  such  authority  is 
indispensable  to  the  maintenance  of  a  permanent  Union 
and  free  institutions,  and  those  who  believe  it  dangerous 
to  the  rights  of  the  States  and  to  individual  liberty, 
Marshall  refers  to  this  when  he  wrote :  "  The  country 
was  divided  into  two  great  political  parties,  the  one  of 
which  contemplated  America  as  a  Nation,  and  labored 
incessantly  to  invest  the  Federal  head  with  powers  com 
petent  to  the  preservation  of  the  Union;  the  other  at 
tached  itself  to  the  State  governments,  viewed  all  the 
powers  of  Congress  with  jealousy,  and  assented  reluct 
antly  to  measures  which  would  enable  the  head  to  act  in 
any  respect  independently  of  the  members."  It  is  the 
verdict  of  history  that  the  danger  to  the  rights  and  in 
dependence  of  the  States  and  the  freedom  of  the  people 
from  the  encroachments  of  the  central  authority  does 
not  exist  under  a  Federal  system  entered  into  by  sov 
ereign  States;  and  Marshall  showed  consummate  wis 
dom  and  statesmanship  in  so  adjusting  by  judicial  con 
struction  the  relative  powers  of  the  Federal  Government 
and  the  States  as  to  secure  the  supremacy  of  the  Consti 
tution  and  a  permanent  Union. 


293  Rhode  Island—  Oration  of  Le  Baron  Coll. 

The  new  government  had  been  organized  only  a  short 
time  when  the  momentous  questions  of  constitutional 
construction  endangered  its  stability  and  existence. 

Did  the  Constitution  establish  a  sovereign  Nation  or  a 
mere  compact  between  sovereign  States?  Is  the  Fed 
eral  Government  the  final  judge  of  the  extent  of  the 
powers  granted  under  the  Constitution?  Is  the  Supreme 
Court  the  sole  judge  of  its  own  jurisdiction;  and  is  it 
authorized  to  declare  what  the  supreme  law  is?  Did  the 
Constitution  establish  an  efficient  and  permanent  gov 
ernment,  or  is  the  Constitution,  in  the  words  of  Mar 
shall,  only  "a  solemn  mockery;"  "a  magnificent  struct 
ure,  indeed,  to  look  at,  but  totally  unfit  for  use?  "  Is  it, 
as  Pinkney  exclaimed  in  McCulloch  v.  Maryland,  "  a  com 
petent  guardian  of  all  that  is  dear  to  us  as  a  Nation,"  or 
is  it  "  a  mere  phantom  of  political  power,  a  pageant  of 
mimic  sovereignty?" 

The  supremacy  of  the  Constitution  was  attacked  in 
many  ways.  It  was  insisted  that  the  Constitution  did 
not  destroy,  as  an  ultimate  question,  the  sovereignty  of 
the  States.  The  Supreme  Court  is  not  the  judge  of  its 
own  jurisdiction,  because  that  would  make  it  sovereign. 
It  might  be  a  convenient  agency  in  the  government,  but 
it  is  inconsistent  with  the  nature  of  sovereignty  that  a 
sovereign  State  should  submit  to  its  judgments.  This 
would  make  the  agent  the  master,  and  the  Supreme  Court 
would  become  a  menace  to  the  States.  There  is  no  super 
visory  power  in  the  Supreme  Court  to  revise  the  action 
of  a  sovereign  State.  It  has  no  right  to  nullify  the  leg 
islative  act  of  a  State.  It  has  no  power  to  declare  void 
an  Act  of  Congress  because,  under  the  Constitution,  the 
government  is  organized  into  co-ordinate  departments 
of  equal  authority.  The  powers  expressly  granted  to 


John  Marshall  Memorial.  294 

Congress  and  the  prohibitions  imposed  on  the  States, 
under  the  Constitution,  should  receive  a  strict  construc 
tion.  The  power  of  Congress  to  make  all  necessary  and 
proper  laws  to  carry  into  effect  the  powers  granted  by 
the  Constitution  should  not  be  expanded  by  implication 
to  cover  other  powers  not  specifically  enumerated. 

The  answers  to  these  and  other  contentions  are  found 
in  Marshall's  decisions,  and  they  are  embraced  in  certain 
fundamental  conclusions:  The  Constitution  organizes  a 
government  complete  within  itself.  It  establishes  a  per 
petual  Union  and  is  the  guardian  of  the  rights  of  the 
people.  For  these  great  purposes,  the  powers  conferred 
by  that  instrument  are  sufficient.  Under  the  Confedera 
tion,  the  central  authority  exerted  its  action  upon  sover 
eign  States  and  they  were  not  compelled  to  obey  its 
mandates.  Under  the  Constitution,  the  Federal  powers 
are  exerted  directly  upon  the  people,  and  they  establish 
a  government,  as  distinguished  from  a  mere  confedera 
tion,  with  the  usual  powers  of  a  government,  and  organ 
ized  into  different  departments.  The  Constitution  does 
not  limit  the  exercise  of  Federal  power  to  strictly  Fed 
eral  subjects,  but  goes  beyond;  and  by  its  prohibitions 
upon  the  States,  it  shields  the  personal  rights  of  the  in- ' 
dividual.  Sovereignty  in  the  United  States  resides  in 
the  people.  It  does  not  rest,  as  in  England,  with  Parlia 
ment,  or  with  the  sovereign  ruler  as  in  many  European 
countries.  The  people  have  surrendered  a  portion  of 
their  sovereignty  in  the  form  of  a  written  constitution, 
and  the  people  only  can  revoke,  alter,  or  amend  their 
own  supreme  law.  The  national  authority  is  conferred 
and  measured  by  the  Federal  Constitution,  and  "pre 
scription  cannot  aid  it,  nor  precedent  enlarge  it."  The 
Constitution  is  the  supreme  law  of  the  land,  and  as  such 


295  Rhode  Island—  Oration  of  Le  Baron  Colt. 

is  supreme  over  all  citizens,  and  State  authority.  The 
reserved  powers  of  the  States  cannot  stay  the  operation 
of  the  supreme  law. 

The  Union  being  perpetual,  it  cannot  be  dissolved  by 
a  part  of  the  States,  or  by  the  people  of  those  States. 
The  Federal  Government  is  the  final  judge  of  the  nature 
and  extent  of  its  powers  under  the  Constitution.  The 
Supreme  Court  is  the  judge  of  its  own  jurisdiction,  and 
of  what  the  law  is.  It  may  nullify  an  Act  of  Congress 
or  of  a  State,  and  it  has  a  supervisory  power  over  the 
judgments  of  the  highest  courts  of  a  State  where  a  con 
stitutional  question  is  involved.  There  are  also  implied 
powers  in  the  Constitution;  and  if  the  end  be  legitimate, 
the  means  appropriate  to  that  end,  when  not  prohibited, 
are  constitutional,  if  within  the  spirit  and  scope  of  that 
instrument. 

Such  were  some  of  the  principles  of  construction  ap 
plied  to  the  Constitution  in  Marshall's  decisions,  which, 
for  lucid  and  cogent  reasoning,  power  of  analysis,  com 
prehensiveness  and  broad  generalization,  have  never  been 
surpassed.  They  cover  the  great  underlying  problems  of 
constitutional  interpretation.  They  deal  with  the  ques 
tions  of  the  powers  granted  to  Congress;  the  reserve  pow 
ers  of  the  States,  and  the  restrictions  imposed  upon  the 
States  by  the  express  and  implied  powers  of  Congress. 

Marbury  v.  Madison  was  one  of  Marshall's  earlier  and 
most  famous  decisions.  It  was  there  held  that  the  Con 
stitution  is  the  supreme  law;  that  an  Act  of  Congress  re 
pugnant  thereto  is  void;  and  that  the  Supreme  Court  is 
the  final  judge  of  the  fundamental  law. 

"  The  question,"  said  the  Chief  Justice,  "  whether  an 
act  repugnant  to  the  Constitution  can  become  the  law  of 
the  land  is  a  question  deeply  interesting  to  the  United 


John  Marshall  Memorial.  296 

States.  .  „  .  That  the  people  have  an  original  right  to 
establish, for  their  future  government,such  principles  as,  in 
their  opinion,  shall  most  conduce  to  their  own  happiness, 
is  the  basis  on  which  the  whole  American  fabric  has  been 
erected.  .  .  .  This  original  and  supreme  will  organ 
izes  the  government,  and  assigns  to  different  departments 
their  respective  powers.  .  .  .  The  Constitution  is 
either  a  superior,  paramount  law,  unchangeable  by  ordi 
nary  means,  or  it  is  on  a  level  with  ordinary  legislative 
acts,  and,  like  other  acts,  is  alterable  when  the  legislature 
shall  please  to  alter  it.  If  the  former  part  of  the  alterna 
tive  be  true,  then  a  legislative  act  contrary  to  the  Consti 
tution  is  not  law ;  if  the  latter  part  be  true,  then  written 
constitutions  are  absurd  attempts  on  the  part  of  the  peo 
ple  to  limit  power  in  its  own  nature  illimitable. 

"  Certainly  all  those  who  have  framed  written  constitu 
tions  contemplate  them  as  forming  the  fundamental  and 
paramount  law  of  the  nation,  and,  consequently,  the  theory 
of  every  such  government  must  be,  that  an  act  of  the 
Legislature  repugnant  to  the  Constitution  is  void. 

"  This  theory  is  essentially  attached  to  a  written  consti 
tution,  and  is  consequently  to  be  considered  by  this  court 
as  one  of  the  fundamental  principles  of  our  society.  .  .  . 
It  is  emphatically  the  province  and  duty  of  the  judicial  de 
partment  to  say  what  the  law  is.  ...  This  is  of  the 
very  essence  of  judicial  duty.  .  .  .  Those,  then,  who 
controvert  the  principle  that  the  Constitution  is  to  be 
considered  in  court  as  a  paramount  law  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their 
eyes  on  the  Constitution,  and  see  only  the  law.  This 
doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act  which,  ac 
cording  to  the  principles  and  theory  of  our  government, 


297  Rhode  Island—  Oration  of  Le  Baron  Colt. 

is  entirely  void,  is  yet,  in  practice,  completely  obligatory. 
It  would  declare  that,  if  the  Legislature  shall  do  what  is 
expressly  forbidden,  such  act,  notwithstanding  the  ex 
press  prohibition,  is  in  reality  effectual.  .  .  .  It  is 
prescribing  limits,  and  declaring  that  those  limits  may 
be  passed  at  pleasure. 

"  That  it  thus  reduces  to  nothing  what  we  have  deemed 
the  greatest  improvement  on  political  institutions,  a  writ 
ten  constitution,  would  of  itself  be  sufficient,  in  America, 
where  written  constitutions  have  been  viewed  with  so 
much  reverence,  for  rejecting  the  construction." 

It  was  by  such  unanswerable  reasoning  that  Marshall 
reached  his  conclusions. 

In  United  States  v.  Peters,  where  the  question  arose  of 
the  power  of  a  State  by  statute  to  disregard  a  judgment 
of  the  Supreme  Court,  the  Chief  Justice  declared: 

"  If  the  Legislatures  of  the  several  States  may,  at  will, 
annul  the  judgments  of  the  courts  of  the  United  States,  and 
destroy  the  rights  acquired  under  those  judgments,  the 
Constitution  itself  becomes  a  solemn  mockery;  and  the 
nation  is  deprived  of  the  means  of  enforcing  its  laws  by 
the  instrumentality  of  its  own  tribunals." 

The  power  of  the  Supreme  Court  to  review  the  judg 
ment  of  the  highest  court  of  a  State,  where  a  constitu 
tional  question  is  involved,  was  affirmed  in  Cohens  v. 
Virginia.  In  his  great  opinion  in  that  case,  the  Chief 
Justice  observed : 

"The  questions  presented  to  the  court  by  the  first 
two  points  made  at  the  bar  are  of  great  magnitude,  and 
may  be  truly  said  vitally  to  affect  the  Union.  They 
exclude  the  inquiry  whether  the  Constitution  and  laws 
of  the  United  States  have  been  violated  by  the  judg 
ment  which  the  plaintiffs  in  error  seek  to  review;  and 


John  Marshall  Memorial.  298 

maintain  that,  admitting  such  violation,  it  is  not  in  the 
power  of  the  government  to  apply  a  corrective.     They 
maintain  that  the  nation  does  not  possess  a  department 
capable  of  restraining  peaceably,  and  by  authority  of  law, 
any  attempts  which  may  be  made  by  a  part,  against  the 
legitimate  powers  of  the  whole;  and  that  the  govern 
ment  is  reduced  to  the  alternative  of  submitting  to  such 
attempts,  or  of  resisting  them  by  force.     They  maintain 
that  the  Constitution  of  the  United  States  has  provided 
no  tribunal  for  the  final  construction  of  itself  or  of  the 
laws  or  treaties  of  the  nation ;  but  that  this  power  may 
be  exercised,  in  the  last  resort,  by  the  courts  of  every 
State  in  the  Union.     That  the  Constitution,  laws,  and 
treaties  may  receive  as  many  constructions  as  there  are 
States;  and  that  this  is  not  a  mischief,  or,  if  a  mischief, 
is  irremediable.     ...     If  such  be  the  Constitution,  it 
is  the  duty  of  the  court  to  bow  with  respectful  submis 
sion  to  its  provisions.     If  such  be  not  the  Constitution,  it 
is  equally  the  duty  of  the  court  to  say  so;  and  to  per 
form  that  task  which  the  American  people  have  assigned 
to  the  judicial  department."     After  quoting  Article  YI  of 
the  Constitution,  which  declares  that  the  Constitution, 
laws  and  treaties  shall  be  the  supreme  law  of  the  land, 
the  opinion  proceeds:  "  This  is  the  authoritative  language 
of  the  American  people ;  and,  if  the  gentleman  please,  of 
the  American  States.     It  marks,  with  lines  too  strong  to 
be  mistaken,  the  characteristic  distinction  between  the 
government  of  the  Union,  and  those  of  the  States.     The 
General  Government,  though  limited  as  to  its  objects,  is 
supreme  with  respect  to  those  objects.     This  principle  is 
a  part  of  the  Constitution ;  and  if  there  be  any  who  deny 
its  necessity,  none  can  deny  its  authority.     ...     A 
constitution  is  framed  for  ages  to  come,  and  is  designed 


299  Rhode  Island— Oration  of  Le  Baron  Colt. 

to  approach  immortality  as  nearly  as  human  institutions 
can  approach  it.  Its  course  cannot  always  be  tranquil. 
It  is  exposed  to  storms  and  tempests;  and  its  framers 
must  be  unwise  statesmen,  indeed,  if  they  have  not  pro 
vided  it,  as  far  as  its  nature  will  permit,  with  the  means 
of  self-preservation  from  the  perils  it  may  be  destined  to 
encounter.  .  .  .  The  people  made  the  Constitution, 
and  the  people  can  unmake  it.  It  is  the  creature  of  their 
will,  and  lives  only  by  their  will.  But  this  supreme  and 
irresistible  power  to  make  or  to  unmake  resides  only  in 
the  whole  body  of  the  people;  not  in  any  subdivision  of 
them.  The  attempt  of  any  of  the  parts  to  exercise  it  is 
usurpation,  and  ought  to  be  repelled  by  those  to  whom 
the  people  have  delegated  their  power  of  repelling  it." 

This  opinion,  which  is  tinged  with  patriotic  emotion, 
points  out  the  primary  and  elemental  principles  on  which 
the  Constitution  rests. 

McCulloch  v.  Maryland  is  a  notable  decision.  The 
case  involved  the  power  of  the  government  to  establish 
a  bank,  as  an  implied  power  under  Article  I,  Section  8, 
giving  Congress  power  to  make  all  necessary  and  proper 
laws  for  carrying  into  execution  the  powers  vested  by  the 
Constitution  in  Congress  or  in  the  Government.  The 
power  was  affirmed  by  the  Chief  Justice.  "We  admit," 
he  said,  "as  all  must  admit,  that  the  powers  of  the 
government  are  limited,  and  that  its  limits  are  not  to  be 
transcended.  But  we  think  the  sound  construction  of  the 
Constitution  must  allow  to  the  National  Legislature  that 
discretion,  with  respect  to  the  means  by  which  the  pow 
ers  it  confers  are  to  be  carried  into  execution,  which  will 
enable  that  body  to  perform  the  high  duties  assigned  to 
it,  in  the  manner  most  beneficial  to  the  people.  Let  the 
end  be  legitimate,  let  it  be  within  the  scope  of  the  Con- 


John  Marshall  Memorial.  300 

stitution,  and  all  means  which  are  appropriate,  which  are 
plainly  adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional." 

Another  great  question  decided  in  that  case  related  to 
the  power  of  a  State  to  tax  a  bank  established  by  the 
government.  On  this  point  the  Chief  Justice  declared: 

"  That  the  power  to  tax  involves  the  power  to  destroy; 
that  the  power  to  destroy  may  defeat  and  render  useless 
the  power  to  create;  that  there  is  a  plain  repugnance,  in 
conferring  on  one  government  a  power  to  control  the 
constitutional  measures  of  another,  which  other,  with  re 
spect  to  those  very  measures,  is  declared  to  be  supreme 
over  that  which  exerts  the  control,  are  propositions  not 
to  be  denied.  ...  If  the  States  may  tax  one  instru 
ment  employed  by  the  government  in  the  execution  of 
its  powers,  they  may  tax  any  and  every  other  instru 
ment." 

The  necessity  of  uniform  regulations  of  commerce  was 
the  most  powerful  cause  which  led  to  the  adoption  of  the 
Constitution.  The  construction  of  the  commerce  clause 
in  that  instrument  came  under  consideration  in  Gibbons 
v.  Ogclen.  The  State  of  New  York  had  granted  the  exclu 
sive  right  to  Eobert  Fulton  and  Livingston  to  navigate 
all  the  waters  of  New  York  with  vessels  propelled  by 
steam.  This  right  had  been  assigned  to  Ogden,  the  orig 
inal  plaintiff.  The  highest  court  of  New  York  had  re 
strained  the  original  defendant,  Gibbons,  from  navigat 
ing  the  Hudson  Eiver  with  steamboats  licensed  under  an 
Act  of  Congress.  The  State  law  was  held  void.  "  Com 
merce,"  said  the  Chief  Justice,  "  undoubtedly,  is  traffic, 
but  it  is  something  more:  it  is  intercourse.  .  .  .  All 
America  understands,  and  has  uniformly  understood,  the 


301  Rhode  Island—  Oration  of  Le  Baron  Colt. 

word  '  commerce '  to  comprehend  navigation.  .  .  . 
The  power  over  commerce,  including  navigation,  was 
one  of  the  primary  objects  for  which  the  people  of 
America  adopted  their  government,  and  must  have  been 
contemplated  in  forming  it.  ...  This  power,  like 
all  others  vested  in  Congress,  is  complete  in  itself,  may 
be  exercised  to  its  utmost  extent,  and  acknowledges  no 
limitations  other  than  are  prescribed  in  the  Constitu 
tion.  .  .  .  The  power  of  Congress,  then,  comprehends 
navigation  within  the  limits  of  every  State  in  the  Union, 
so  far  as  that  navigation  may  be,  in  any  manner,  con 
nected  with  <  commerce  with  foreign  nations,  or  among 
the  several  States,  or  with  the  Indian  tribes.'  .  .  . 

"  Powerful  and  ingenious  minds,  taking,  as  postulates, 
that  the  powers  expressly  granted  to  the  Government  of 
the  Union  are  to  be  contracted  by  construction  into  the 
narrowest  possible  compass,  and  that  the  original  powers 
of  the  States  are  retained,  if  any  possible  construction 
will  retain  them,  may  by  a  course  of  well  digested  but 
refined  and  metaphysical  reasoning,  founded  on  these 
premises,  explain  away  the  Constitution  of  our  Country, 
and  leave  it  a  magnificent  structure,  indeed,  to  look  at, 
but  totally  unfit  for  use." 

In  The  American  Insurance  Company  v.  Canter,  where 
the  validity  and  effect  of  the  treaty  of  1819,  by  which 
Spain  ceded  Florida  to  the  United  States,  was  before  the 
court,  the  Chief  Justice  said :  "  The  Constitution  confers 
absolutely  on  the  Government  of  the  Union  the  powers 
of  making  war,  and  of  making  treaties;  consequently, 
that  government  possesses  the  power  of  acquiring  terri 
tory,  either  by  conquest  or  by  treaty." 

Marshall  was  not  in  favor  of  a  narrow  construction  of 
the  Constitution,  nor  of  an  enlarged  construction  beyond 


John  Marshall  Memorial.  302 

the  natural  meaning  of  the  words.  Upon  this  general 
question,  he  observed,  in  Gibbons  v.  Ogden : 

"What  do  gentlemen  mean  by  a  strict  construc 
tion  ?  If  they  contend  only  against  that  enlarged  con 
struction  which  would  extend  words  beyond  their  nat 
ural  and  obvious  import,  we  might  question  the  appli 
cation  of  the  term,  but  should  not  controvert  the  prin 
ciple.  If  they  contend  for  that  narrow  construction 
which,  in  support  of  some  theory  not  to  be  found  in  the 
Constitution,  would  deny  to  the  government  those  pow 
ers  which  the  words  of  the  grant,  as  usually  under 
stood,  import,  and  which  are  consistent  with  the  general 
views  and  objects  of  the  instrument;  for  that  narrow 
construction,  which  would  cripple  the  government,  and 
render  it  unequal  to  the  objects  for  which  it  is  declared 
to  be  instituted,  and  to  which  the  powers  given,  as  fairly 
understood,  render  it  competent, —  then  we  cannot  per 
ceive  the  propriety  of  this  strict  construction,  nor  adopt 
it  as  the  rule  by  which  the  Constitution  is  to  be  ex 
pounded.  .  .  .  The  enlightened  patriots  who  framed 
our  Constitution,  and  the  people  who  adopted  it,  must  be 
understood  to  have  employed  words  in  their  natural 
sense,  and  to  have  intended  what  they  have  said.  If, 
from  the  imperfection  of  human  language,  there  should 
be  serious  doubts  respecting  the  extent  of  any  given 
power,  it  is  a  well  settled  rule  that  the  objects  for  which 
it  was  given,  especially  when  those  objects  are  expressed 
in  the  instrument  itself,  should  have  great  influence  in 
the  construction." 

This  occasion  will  not  permit  a  more  extended  refer 
ence  to  Marshall's  opinions.  It  is  sufficient  to  observe 
that  they  constitute  in  a  large  measure  the  judicial  struct 
ure  of  the  nation. 


503  Rhode  Island—  Oration  of  Le  Baron  Colt. 

When  we  speak  of  the  Supreme  Court  decisions  on 
constitutional  questions  as  those  of  Marshall,  we  are 
doing  no  injustice  to  the  other  members  of  the  court. 
His  master  mind  directed  and  governed  that  tribunal  on 
this  subject.  This  was  the  verdict  of  his  contemporaries. 
In  dedicating  his  "  Commentaries  on  the  Constitution  " 
to  Marshall,  Judge  Story  wrote:  "  Other  judges  have  at 
tained  an  elevated  reputation  by  similar  labors  in  a  sin 
gle  department  of  jurisprudence.  But  in  one  department 
(it  need  scarcely  be  said  that  I  allude  to  that  of  consti 
tutional  law)  the  common  consent  of  your  countrymen 
has  admitted  you  stand  without  a  rival.  Posterity  will 
surely  confirm  by  its  deliberate  award  what  the  present 
age  has  approved  as  an  act  of  undisputed  justice." 

Of  the  six  decisions  involving  questions  of  constitu 
tional  law  from  the  organization  of  the  court  in  1790  to 
Marshall's  appointment  in  1801,  only  two  were  of  grave 
importance.  From  1801  to  1835,  covering  the  period 
Marshall  was  Chief  Justice,  sixty-two  decisions  on  con 
stitutional  questions  were  given,  in  thirty-six  of  which 
the  opinion  of  the  court  was  written  by  him.  Although 
this  was  his  most  important  work,  it  comprises  only  a 
fraction  of  his  judicial  labors.  In  the  thirty  volumes  of 
reports  extending  from  the  first  of  Cranch  to  and  includ 
ing  the  ninth  of  Peters,  there  are  eleven  hundred  and  six 
cases  in  which  opinions  were  filed,  and  five  hundred  and 
nineteen  of  these  were  delivered  by  Marshall.  These 
opinions  cover  questions  on  nearly  every  important 
branch  of  jurisprudence.  The  case  of  Ogden  v.  Saunders 
was  the  only  case  raising  a  constitutional  question  where 
the  majority  of  the  court  differed  from  the  Chief  Justice. 

In  the  department  of  constitutional  law,  the  field  was 
new.  There  were  few  precedents,  because  the  construe- 


John  Marshall  Memorial.  304 

tion  and  declaration  of  the  supreme  law  by  a  court,  under 
a  written  constitution,  was  unknown.  Marshall's  only 
light  was  the  inward  light  of  reason.  He  had  "  no  guides 
but  the  primal  principles  of  truth  and  justice."  He  does 
not  cite  a  single  decision  on  the  great  constitutional  ques 
tions  determined  in  Marbury  v.  Madison,  Cohens  v.  Yir- 
ginia,  Sturges  v.  Crowninshield,  McCulloch  v.  Maryland, 
and  Dartmouth  College  v.  Woodward.  Judge  Story 
said,  "  When  I  examine  a  question,  I  go  from  headland 
to  headland,  from  case  to  case;  Marshall  has  a  compass, 
puts  out  to  sea,  and  goes  directly  to  his  result."  Tra 
dition  records  (we  will  not  say  truthfully)  that  when 
Marshall  had  finished  reading  his  great  opinions,  he 
would  sometimes  observe,  "  These  seem  to  me  to  be  the 
conclusions  to  which  we  are  conducted  by  the  reason  and 
spirit  of  the  law.  Brother  Story  will  furnish  the  authori 
ties." 

/Marshall's  decisions  are  demonstrations  founded  upon 
pure  reason.  They  are  chains  of  compact  reasoning  lead 
ing  to  inevitable  conclusions.  They  are  almost  devoid 
of  illustration  or  analogy.  They  show  profound  medita 
tion  and  deep  penetration.  They  grapple  with  great 
underlying  principles,  and  exclude  extraneous  circum 
stances.  In  the  words  of  a  contemporary:  "When  we 
regard  their  originality,  their  depth,  their  clearness  and 
their  adamantine  strength,  we  look  upon  them  as  the 
highest  efforts  of  the  human  mindly  Webster  declared: 
"When  Judge  Marshall  says,  'It  is  admitted,' — Sir,  I 
am  preparing  for  a  bomb  to  burst  over  my  head  and  de 
molish  all  my  points."  After  hearing  Marshall  deliver 
several  opinions,  William  Pinkney  exclaimed:  "He  was 
born  to  be  the  Chief  Justice  of  any  country  in  which  he 
lived."  And  John  Adams  said  that  his  gift  of  John 


305  Rhode  Island—  Oration  of  Le  Baron  Colt. 

Marshall  to  the  United  States  was  the  proudest  act  of 
his  life. 

When  Marshall,  at  the  age  of  forty-five,  was  appointed 
Chief  Justice,  he  had  been  engaged  in  the  leading  events 
of  his  time.  His  previous  life  was  a  training  and  prepa 
ration  for  the  high  office  he  then  assumed.  He  was  al 
ready  distinguished  as  a  patriot,  lawyer,  legislator,  states 
man,  and  diplomatist;  and,  soon  after  he  became  Chief 
Justice,  his  "  Life  of  Washington  "  was  published. 

While  serving  as  Secretary  of  State  he  was  nominated 
by  President  Adams  for  Chief  Justice;  his  nomination 
was  unanimously  confirmed  by  the  Senate;  and  he  was 
commissioned  January  31,  1801.  He  took  his  seat  on 
February  4,  to  enter  upon  a  career  the  most  remarkable 
in  judicial  annals. 

Marshall  possessed  intellectual  powers  of  the  highest 
order.  The  commanding  features  of  his  mind  were  calm 
ness,  penetration  and  profound  wisdom.  In  judicial  ac 
quirements  he  was  not  the  equal  of  some  of  his  contem 
poraries.  He  was  not  what  is  termed  a  learned  man, 
and  he  had  none  of  the  arts  of  an  advocate.  He  relied 
upon  the  original  powers  of  his  mind,  and  not  upon 
knowledge  gained  from  others.  He  worked  out  the 
great  problems  of  constitutional  jurisprudence  as  Newton 
worked  out  the  great  problems  of  natural  science.  He 
mastered  new  subjects  by  his  powers  of  analysis  and  in 
tuitive  perception  of  the  tfruth.  "He  seized,  as  it  were 
by  intuition,"  says  Judge  Story,  "  the  very  spirit  of  jurid 
ical  doctrines,  though  cased  up  in  the  armor  of  centuries; 
and  he  discussed  authorities  as  if  the  very  minds  of  the 
judges  themselves  stood  disembodied  before  him." 

Marshall's  moral  nature  was  in  harmony  with  his  in 
tellectual.  His  affections  were  strong  and  pure.  His 
VOL.  1—20 


John  Marshall  Memorial.  306 

character  was  spotless.  It  is  said  he  never  had  an  enemy. 
The  affectionate  regard  which  bound  others  to  him  in  his 
youth  and  during  his  long  public  career,  became,  towards 
the  closing  days  of  his  life,  an  exalted  veneration.  His 
nature  was  marked  by  deep  sensibility  and  tenderness. 
Speaking  of  his  domestic  virtues,  Judge  Story,  in  his 
beautiful  eulogy,  declares:  "After  all,  whatever  may  be 
his  fame  in  the  eyes  of  the  world,  that  which  in  a  just 
sense  was  his  highest  glory  was  the  purity,  affectionate- 
ness,  liberality,  and  devotedness  of  his  domestic  life. 
Home,  home,  was  the  scene  of  his  real  triumphs." 

Though  distinguished  for  moderation  and  good  temper, 
he  was  immovable  in  his  performance  of  judicial  duty. 
The  trial  of  Aaron  Burr  is  an  illustration  of  his  firmnesf? 
and  impartiality  under  the  most  trying  circumstances. 
The  country  was  convinced  of  Burr's  guilt,  and  Marshall's 
rulings  were  severely  censured.  "  Marshall,"  exclaimed 
Wirt,  "  has  stepped  in  between  Burr  and  death."  But  the 
great  Chief  Justice  stood  unmoved  while  the  storm  of 
passion  and  prejudice  raged  about  him.  The  English  law 
of  treason,  he  declared,  had  not  been  imported  into  the 
Constitution.  Treason  under  the  Constitution  consists  in 
some  overt  act,  and  it  is  not  treason  for  the  subject  to 
"  imagine  the  death  of  the  King."  Marshall's  deepest 
feelings  were  aroused  in  this  memorable  trial.  Listen  to 
these  words:  "That  this  court  dares  not  usurp  power  is 
most  true.  That  this  court  dares  not  shrink  from  its 
duty  is  not  less  true.  No  man  is  desirous  of  placing  him 
self  in  a  disagreeable  situation.  No  man  is  desirous  of 
becoming  the  peculiar  subject  of  calumny.  No  man, 
might  he  let  the  bitter  cup  pass  from  him  without  self- 
reproach,  would  drain  it  to  the  bottom.  But  if  he  has 
no  choice  in  the  case;  if  there  is  no  alternative  presented 


307  Rhode  Island—  Oration  of  Le  Baron  Coif. 

to  him  but  a  dereliction  of  duty  or  the  opprobrium  of 
those  who  are  denominated  the  world,  he  merits  the  con 
tempt  as  well  as  the  indignation  of  his  country  who  can 
hesitate  which  to  embrace." 

When  the  question  was  put  to  Wirt  after  the  trial : 
"Why  did  you  not  tell  Judge  Marshall  that  the  people 
of  America  demanded  a  conviction?"  "Tell  him  that!" 
was  the  reply.  "  I  would  as  soon  have  gone  to  Herschel, 
and  told  him  that  the  people  of  America  insisted  that  the 
moon  had  horns  as  a  reason  why  he  should  draw  her  with 
them." 

Marshall's  personal  traits  were  winning.  Nothing 
seemed  to  disturb  his  temper  or  equanimity.  His  man 
ners  on  the  bench  were  a  model  of  dignity,  simplicity  and 
courtesy.  He  heard  the  arguments  of  counsel  with  unsur 
passed  patience  and  strict  attention.  "  The  gravity  of  the 
judge  was  tempered  with  the  courtesy  of  the  gentleman." 

An  English  traveler  gives  us  a  touching  picture  of  the 
Chief  Justice  during  his  last  days:  "The  Judge  is  a  tall, 
venerable  man,  about  eighty  years  of  age,  his  hair  tied 
in  a  queue  according  to  olden  custom ;  and  with  a  coun 
tenance  indicating  that  simplicity  of  mind  and  benignity 
which  so  eminently  distinguish  his  character.  His  house 
is  small,  and  more  humble  in  appearance  than  those  of 
the  average  successful  lawyers  or  merchants.  I  called 
three  times  upon  him.  There  was  no  bell  to  the  door. 
Once  I  turned  the  handle  of  it  and  walked  in  unan 
nounced.  On  the  other  two  occasions  he  had  seen  me 
coming  and  had  lifted  the  latch  and  received  me  at  the 
door,  although  he  was  at  the  time  suffering  from  some 
very  severe  contusions  received  in  the  stage  while  trav 
eling  on  the  road  from  Fredericksburg  to  Richmond.  I 
verily  believe  there  is  not  a  particle  of  vanity  in  his  com- 


John  Marshall  Memorial.  308 

position."  Such  was  the  man,  simple,  kindly,  great  —  the 
noble  attributes  of  true  manhood. 

Perhaps  no  tribute  after  his  death  is  more  beautiful 
than  is  expressed  in  the  words:  "The  fame  of  the  Chief 
Justice  has  justified  the  wisdom  of  the  Constitution,  and 
reconciled  the  jealousy  of  freedom  to  the  independence 
of  the  judiciary." 

The  affection  and  veneration  of  the  bar  are  feelingly 
shown  by  the  resolutions  adopted  by  the  Circuit  Court 
of  Virginia,  which  declare  that  he  had  presided  for  thirty- 
five  years  "  with  such  modesty  that  he  seemed  wholly 
unconscious  of  his  own  gigantic  powers;  with  such  equa 
nimity,  such  benignity  of  temper,  such  amenity  of  man 
ners,  that  not  only  none  of  the  judges  who  sat  with  him 
on  the  bench,  but  no  member  of  the  bar,  no  officer  of  the 
court,  no  juror,  no  witness,  no  suitor,  in  a  single  instance, 
ever  found  or  imagined,  in  anything  said  or  done,  or 
omitted  by  him,  the  slightest  cause  of  offense." 

The  providence  of  God  has  been  made  manifest  to 
this  nation  "  in  raising  up  from  time  to  time  men  of  pre 
eminent  goodness  and  wisdom"-— Washington,  Lincoln, 
Marshall,  each  fitted  for  his  special  work.  The  name 
and  services  of  Marshall  are  less  known  because  what  he 
did  lies  more  hidden  from  the  eyes  of  men.  But  it  only 
requires  examination  and  reflection  to  reveal  the  incal 
culable  value  of  his  labors,  and  his  title  to  the  gratitude 
of  his  country.  In  the  beautiful  emblem  of  the  nation 
which  hangs  from  these  historic  walls  it  was  by  his  hand 
the  silken  threads  were  woven  into  the  folds  in  which  are 
set  and  held  forever  those  shining  stars. 

To  comprehend  Marshall's  work  we  must  stand  upon 
the  mountain  top  and  survey  the  Nation;  its  cluster  of 
proud  States  stretching  from  ocen  to  ocean;  its  groups 
of  islands  encircling  the  sea ;  its  strings  of  great  cities ; 


309  Rhode  Island—  Oration  of  Le  Baron  Colt. 

its  countless  towns  and  villages,  farms  and  homes;  its 
temples  of  worship  on  every  hillside  whose  spires  are  the 
first  to  greet  the  morning  sun  at  its  coming;  its  schools 
and  universities;  its  hospitals  and  charities;  its  commerce 
and  arts;  its  science  and  invention;  its  industries  and 
wealth, —  the  whole  picture  of  national  life  which  is 
spread  before  our  vision. 

Behold  the  change !  We  are  no  longer  a  feeble  con 
federation  of  colonies  fringing  the  Atlantic  coast;  but  a 
mighty  composite  Eepublic  standing  in  the  front  rank 
of  nations,  beckoning  the  poor  and  heavy  burdened  of 
other  climes  to  this  home  of  material  comfort,  civiliza 
tion  and  orderly  liberty ;  and  marching  to  the  financial 
and  commercial  supremacy  of  the  world.  Our  political 
system  is  no  longer  threatened  by  discordant  or  belliger 
ent  States,  but  we  behold  a  loyal,  united  and  enduring 
Union, —  the  highest  type  of  government,  a  Federal  Com 
monwealth  in  its  perfect  form.  We  see  no  longer  a  weak 
and  struggling  national  spirit,  but  the  throb  of  seventy 
million  patriotic  hearts  as  the  Maine  sinks  beneath  the 
waters  in  Havana's  harbor.  The  sj^mbol  of  our  country's 
power  is  no  longer  the  frigate  Constitution,  or  the  wooden 
ships  of  Perry  built  in  a  night  to  cross  an  inland  sea,  but 
the  majestic  and  invincible  Oregon,  traversing  two  oceans 
from  Pacific's  Golden  Gate  to  battle  for  the  oppressed  of 
other  lands  and  the  nation's  honor. 

As  we  enter  the  gateway  of  a  new  century  with  hearts 
overflowing  with  gratitude  to  Almighty  God  for  our  un 
numbered  national  blessings,  and  awaiting  with  high 
anticipation  and  conscious  strength  the  grander  destiny 
of  the  coming  years,  we  may  well  pause  to  lay  our  wreath 
of  laurel  on  the  uncrowned  head  of  the  great  jurist  who 
sank  deep  and  immovable  the  constitutional  pillars  on 
which  the  nation  rests. 


STATE  OF  CONNECTICUT. 

The  law  department  of  Yale  University  united  with 
the  Connecticut  State  Bar  Association  in  the  celebration 
of  John  Marshall  Day.  The  exercises  were  held  Febru 
ary  4,  1901,  in  the  auditorium  of  the  new  Hendrie  Hall, 
of  the  Yale  University  Law  School,  recently  opened. 
Although  the  weather  was  very  inclement,  a  large  and 
representative  assembly  was  present.  Other  details  ap 
pear  in  the  opening  and  introductory  addresses  given 
below.  The  principal  address  was  delivered  by  Charles 
E.  Perkins,  President  of  the  State  Bar  Association.  There 
were  also  addresses  delivered  by  Simeon  E.  Baldwin,  of 
the  Yale  Law  School  and  Justice  of  the  Supreme  Court 
of  Connecticut,  and  by  Nathaniel  Shipman,  of  the  United 
States  Circuit  Court,  Second  Circuit.  After  the  address, 
Hendrie  Hall  was  inspected  and  a  plain  refection  was 
served.1 


Opening  Remarks  by  Francis  Wayland,  Dean  of  the  Tale 
Law  School. 

It  would  seem  almost  an  impertinence,  before  an  audi 
ence  of  lawyers,  lawyers  in  proesenti  et  in  futuro,  if  I 
should  remind  you  that  in  the  year  1899,  at  its  annual 
session,  the  American  Bar  Association  recommended  the 
celebration  of  this  day  as  the  hundredth  anniversary  of 
the  inauguration  of  John  Marshall  as  Chief  Justice  of 

*The  proceedings  on  Marshall  Day  in  Connecticut  were  published 
in  the  Yale  Law  Journal,  volume  X,  No.  5,  March,  1901,  pages  184  to 
210. 


311  Connecticut  —  Remarks  by  Francis  Way  land. 

the  Supreme  Court  of  the  United  States.  And,  by  the 
way,  it  may  interest  us  to  recall  the  fact  that  his  immedi 
ate  predecessor  in  this  high  office  was  Oliver  Ellsworth, 
of  Connecticut. 

The  Bar  Association  also  recommended  the  observance 
of  this  day  by  Congress,  by  the  Supreme  Court  of  the 
United  States,  by  the  Bar  Associations  of  the  different 
States,  by  Law  Schools,  and  other  educational  institutions. 
Our  own  celebration  combines  the  Law  Department  of 
Yale  University  and  the  State  Bar  Association,  repre 
sented  on  this  platform  by  its  President,  the  orator  of  the 
day,  and  His  Excellency,  the  Governor  of  the  State.  The 
Federal  Judiciary  is  represented  by  Judge  Shipman  of 
the  Circuit  Court  and  our  own  Judge  Townsend  of  the 
District  Court;  Yale  University  has  manifested  its  cordial 
interest  in  the  occasion  by  the  attendance  of  President 
Hadley  and  a  large  number  of  the  Faculty  of  the  Uni 
versity. 

It  will  be  gratifying  to  you  all  to  know  that  we  have 
with  us,  as  an  honored  and  welcome  guest,  a  grand-niece 
of  the  great  Chief  Justice.  Two  telegrams  of  to-day  will 
interest  you.  The  first  one  is  addressed  to  Judge  Bald 
win  in  his  capacity  as  the  Mentor  of  the  Law  School  and 
the  recent  President  of  the  American  Bar  Association. 

Illinois  sends  greeting  to  Connecticut  and  American  Bench  and 
Bar  united  in  one  American  brotherhood  on  this  historic  day. 

ADOLPH  MOSES, 

Chairman  Associated  Committee 
of  Illinois  for  John  Marshall  Day. 

To  Mr.  Moses,  a  prominent  member  of  the  bar  of  Chi 
cago,  is  due  the  credit  of  having  originated  this  idea. 
The  reply  is  as  follows: 

Connecticut  and  Yale  return  salutation  of  Illinois.  All  honor  to 
Marshall  from  our  University,  for  he  attended  at  William  and  Mary 


John  Marshall  Memorial.  312 

the  first  university  law  course  in  America,  and  from  our  States,  for 
he  made  their  foundation  sure. 

FRANCIS  WAYLAND, 
Dean  of  the  Yale  Law  School 

SIMEON  E.  BALDWIN, 
Member  of  National  Committee 
on  John  Marshall  Day. 

And  now  it  is  my  pleasant  duty  to  call  the  Commander 
in-Chief  to  the  front.  I  have  the  honor  to  introduce  His 
Excellency,  Governor  McLean,  who  has  kindly  consented 
to  act  as  our  presiding  officer. 

Introductory  Address  by  His  Excellency  the  Governor  of 
Connecticut. 

I  see  that  I  am  down  for  an  introductory  address; 
this  is  not  according  to  agreement,  and  I  presume  that 
is  why  the  good  Dean,  in  the  kindness  of  his  heart,  has 
already  made  an  excellent  one. 

There  are  one  or  two  thoughts,  and  only  one  or  two, 
that  I  shall  take  time  to  express.  I  do  not  agree 
with  Sarah  Dowdney  or  Herbert  that  the  mill  will 
never  grind  again  with  the  water  that  is  past;  the 
lines  fascinate  in  their  hopelessness  only;  they  are  not 
true;  the  mill  may  grind  again  and  again  with  the 
water  that  is  ever  journeying  from  sky  to  earth  and 
from  earth  to  sky.  And  I  do  not  agree  with  Shakes 
peare  that  it  is  the  evil  rather  than  the  good  that  men 
do  that  lives  after  them.  When  a  great  man  loves  and 
labors  and  passes  by  the  living  his  life  returns  ever 
to  help  and  elevate  succeeding  generations,  and  the  in 
fluence  of  that  life  gathers  rather  than  loses  energy  with 
the  years.  Washington  is  dearer  and  Lincoln  comes 
closer  to  the  hearts  of  the  people  with  every  passing  Feb 
ruary;  and  we,  to-day,  have  met  to  welcome,  with  re- 


313  Connecticut — Address  by  President  Hadley. 

newed  interest,  the  spirit  of  the  man  who  stood  with 
"Washington  and  Hamilton  and  kept  the  bridge  so  val 
iantly  in  the  brave  days  of  old ;  defended  and  saved  the 
Constitution  from  the  assaults  of  error  and  envy,  and  laid 
the  base  of  the  pyramid  of  the  Union  in  stuff  that  can 
never  be  moved  or  broken ;  it  is  with  pleasure  that  I  am 
here  with  you  to  hear  of  the  great  Chief  Justice,  and  it 
is  with  great  pleasure  that  I  first  present  to  you  the 
President  of  the  University,  who  needs  no  introduction 
to  this  audience. 


Address  of  Welcome  by  President  Hadley. 

It  is  a  matter  of  happy  omen  that  the  opening  of 
the  new  Law  School  Building  should  come  on  a  day 
so  historic  as  this,  and  be  graced  by  an  assemblage  so 
representative  of  all  that  is  best  in  the  State  of  Con 
necticut. 

In  behalf  of  Yale  University  I  welcome  the  Law  School 
on  coming  fully  into  its  own.  In  bahalf  of  Yale  Univer 
sity  and  the  Law  School  alike  I  welcome  those  members 
of  the  bar  of  the  State,  present  and  prospective,  and 
those  whose  interest  in  the  best  work  that  is  done  on 
legal  lines  has  brought  them  here. 

We  did  not  arrange  the  weather  of  the  day,  nor 
did  John  Marshall;  and  yet  it  is  not  without  signifi 
cance  that  to  this  audience  is  given  an  opportunity  to 
prove  that  they  care  as  little  for  the  storms  of  adver 
sity,  in  the  weather  at  any  rate,  as  did  John  Marshall 
himself. 

But  you  are  not  come  to  listen  to  words  such  as  you  can 
hear  every  day.  It  gives  me  great  pleasure  to  make  way 
for  a  better  man;  for  a  man  whose  orations  always  ap- 


John  Marshall  Memorial.  314 

peal  to  those  who  enjoy  good,  straightforward  think 
ing,  well  expressed,  and  brought  home  to  all  the  hearts 
and  consciences  of  mankind. 

GOVEKNOK  M'LEAIT. 

I  now  have  the  pleasure  of  introducing  to  you  the  Pres 
ident  of  the  Connecticut  Bar  Association,  Charles  E. 
Perkins. 

Address  Delivered  by  Charles  E.  Perkins. 

One  hundred  years  ago  to-day,  John  Marshall,  of  Yir- 
ginia,  took  his  seat  as  Chief  Justice  of  the  Supreme  Court 
of  the  United  States.  To-day,  throughout  this  country, 
meetings  are  being  held  in  honor  of  his  appointment,  at 
tended  by  the  most  eminent  men;  and  there  is  a  general 
feeling  among  the  educated  classes  of  our  people,  that 
the  occasion  is  one  that  ought  to  be  celebrated  and  kept 
in  remembrance.  There  is  something  unusual  about  this. 
Such  commemorations  are  usually  confined  to  great  gen 
erals,  or  great  statesmen,  such  as  Washington,  Grant  or 
Lincoln;  men  who  have  performed  great  deeds  which 
have  been  the  salvation  of  the  nation,  have  made  it  what 
it  is,  or  preserved  it  from  destruction;  why,  then,  should 
Marshall's  appointment  be  so  celebrated  ?  It  is  because 
it  is  largely  through  him  that  these  United  States  have 
become  a  Nation. 

Great  as  he  was,  as  a  lawyer  and  a  judge,  ability  in 
either  respect  would  not  have  placed  him  in  the  position 
he  now  occupies,  if  it  had  not  been  for  the  circumstances 
in  which  he  came  to  the  bench.  It  was  his  construction 
of  the  Constitution  of  the  United  States,  and  the  effect  of 
his  decisions,  that  made  us  a  nation. 


315  Connecticut  —  Address  by  Charles  E.  Perkins. 

That  Constitution  is  the  most  remarkable  document 
that  ever  came  from  the  minds  of  men.  There  had  been 
republics  and  democracies  before,  and  federations  of  va 
rious  kinds;  but  in  no  other  country,  so  far  as  I  know, 
had  there  been  a  definite,  written  constitution  by  which 
they  were  governed.  Even  the  Constitution  of  England, 
about  which  we  have  heard  so  much,  is  chiefly  remark 
able  from  the  fact  that  it  exists  only  in  theory,  and  really 
has  no  binding  force  on  the  law-making  power.  But  the 
problem  which  presented  itself  to  the  men  of  1787  was 
not  merely  to  frame  a  method  of  governing  and  admin 
istering  one  republic:  that  would  have  been  compara 
tively  easy;  but  here  were  thirteen  distinct  States  or 
political  organizations,  each  of  which  was  as  separate 
from  the  other,  so  far  as  influence  or  power  over  each 
other  was  concerned,  as  England  is  from  France ;  differ 
ing  in  manners  and  customs,  in  views  and  opinions,  more 
or  less  jealous  of  each  other,  and  unwilling  to  lose  their 
individual  rights  and  authority. 

These  thirteen  distinct  sovereignties  were  to  be  so 
combined  as  to  form  one  nation  which  was  to  be  sover 
eign  for  certain  purposes,  and  yet  leave  the  States  sov 
ereign  for  all  other  purposes,  and  it  was  necessary  for  the 
convention  to  decide  what  powers  should  be  reserved  by 
the  States,  and  what  delegated  by  them  to  the  new  na 
tion.  This  would  have  been  difficult  enough  if  the  mem 
bers  of  the  convention  had  been  broad-minded,  intelligent, 
unprejudiced  men,  met  together  with  no  prepossessions, 
to  determine  on  principle  what  would  be  best  to  do;  for 
there  were  absolutely  no  precedents  in  history  or  experi 
ence  to  guide  them ;  but  this  was  by  no  means  the  case. 
The  people  in  every  State  were  divided  into  two  parties, 
the  principal  difference  between  them  being  this  very 


John  Marshall  Memorial.  316 

question  of  what  should  be  the  relative  powers  of  these 
respective  governments.  The  Federalists,  headed  by 
Hamilton,  desired  to  have  a  single  nation  of  great  power, 
almost  like  England;  and  to  reduce  the  powers  of  the 
States  as  much  as  possible.  The  opposition,  afterward 
called  the  Republican  party,  headed  by  Jefferson,  and 
including  many  other  men  of  great  ability  and  strong 
and  honest  beliefs,  desired  to  limit  the  power  of  the  new 
government  as  much  as  possible,  and  to  keep  as  much 
power  in  the  States  as  they  possibly  could.  Both  these 
parties  were  largely  represented  in  the  convention  by 
their  best  men. 

The  difficulty  was,  therefore,  to  frame  a  constitution 
which  would  satisfy  all  reasonable  men  of  both  parties, 
and  be  accepted  by  all  the  States,  and  yet  would  give  to 
the  new  government  such  powers  as  were  needed  to  make 
it  of  real  benefit.  It  hardly  seems  possible  that  this 
could  ever  have  been  done,  but  it  was  done,  and  so  well 
done,  that  although  made  for  only  thirteen  States  and  a 
few  millions  of  people,  it  has  been  found  adequate  and 
sufficient  for  forty-five  States  and  over  seventy  millions 
of  people;  and  it  is  even  greater  proof  of  the  wisdom 
and  foresight  of  these  men,  that  with  the  exception  of 
the  ten  amendments  passed  in  1791,  and  which  have  al 
ways  been  regarded  as  practically  part  of  the  Constitu 
tion  itself,  only  two  amendments,  each  of  minor  impor 
tance,  were  made  until  after  the  convulsions  of  the  Civil 
War. 

Neither  of  the  two  great  parties  was  able  to  .carry  out 
its  wishes  in  full;  in  some  instances  compromises  were 
made;  and  the  result  was  to  bring  about  in  many  cases 
the  use  of  broad  general  expressions  which  might  be  con 
strued  in  different  ways,  rather  than  minute  detailed 


317  Connecticut  —  Address  by  Charles  E.  Perkins. 

provisions.  All  the  people,  however,  had  learned  from 
bitter  experience  during  the  Evolution,  that  a  mere  fed 
eration  of  the  States  without  some  power  above  them  all 
would  be  insufficient;  and  the  Constitution  and  ten 
amendments  were  finally  adopted. 

This,  however,  did  not  change  the  views  and  desires  of 
the  two  great  parties:  the  contest  was  only  removed  to 
a  new  field.  It  still  became  necessary  to  determine  what 
the  words  used  in  the  Constitution  meant,  and  how  it 
was  to  be  interpreted.  Those  who  had  fought  the  battle 
for  State  sovereignty  in  the  convention  were  still  as 
ready  and  anxious  to  urge  that  the  new  government 
should  have  no  powers  that  had  not  baen  clearly  and  ex 
pressly  given  to  it,  and  that  the  expressions  used  should 
be  so  construed  as  to  be  restrained  within  the  narrowest 
limits.  The  controversy  was  only  removed  from  the  Con 
vention  to  another  forum. 

It  was  obvious  that  a  mere  written  constitution,  with 
out  some  absolute  authority  to  interpret  it  and  decide 
what  its  meaning  really  was  in  relation  to  many  intricate 
and  embarrassing  questions  and  to  enforce  its  decisions, 
would  be  useless,  and  therefore  some  such  authority  must 
be  provided.  The  most  unique  and  remarkable  feature 
in  this  instrument  is  the  provision  that  the  Supreme  Court 
should  be  a  tribunal  which  should  decide  all  questions 
judicially  arising  under  it,  finally  and  absolutely,  so  as  to 
bind  both  the  States  themselves  and  the  United  States; 
and  having  its  decisions  enforced,  if  necessary,  by  the 
whole  power  of  the  government.  It  was,  I  believe,  the 
lirst  instance  of  such  a  tribunal  in  all  the  history  of  civil 
ized  institutions.  It  is  clear,  too,  that  this  makes  the 
judiciary  by  far  the  greatest  and  most  powerful  of  the 
three  departments  into  which  the  powers  of  government 


John  Marshall  Memorial.  318 

were  divided.  It  has  the  power  in  all  judicial  contro 
versies  and  cases  to  determine  the  validity  of  legislation, 
both  of  Congress  and  of  the  States,  and  to  determine  the 
powers  and  duties  of  the  Executive;  for  it  has  the  power 
to  say  what  the  words  used  in  the  Constitution  and  laws 
actually  mean.  The  power  of  saying  what  words  mean 
is  greater  than  the  power  of  selecting  and  phrasing  the 
words;  for  it  is  the  ideas  which  the  words  convey,  and 
not  the  words  themselves,  which  are  important.  To 
paraphrase  a  well  known  saying,  "Let  who  will  make 
the  laws  if  I  can  construe  them."  This  power  is  still 
greater  in  the  case  of  a  Constitution  like  ours,  where  of 
necessity,  as  well  as  for  reasons  already  suggested,  the 
expressions  are  broad  and  general,  instead  of  detailed  and 
definite. 

It  is  the  greatest  possible  tribute  to  the  wisdom  and 
respect  for  law  of  the  people  of  the  United  States,  that 
although  the  court  has  often  exercised  its  great  power, 
and  has  held  many  laws  passed  by  Congress  as  well  as 
by  the  States  to  be  void,  laws  often  of  great  importance, 
involving  great  interests,  and  affecting  the  feelings  and 
views  of  large  sections  of  the  Union,  its  decisions  have 
invariably  been  submitted  to;  not  indeed  without  objec 
tion  and  disapproval,  for  that  would  be  too  much  to  ex 
pect  of  human  nature,  but  without  defiance  and  resistance. 

This  power  in  the  court  made  the  views  of  its  mem 
bers  of  the  highest  importance.  They  could  so  construe 
the  words  of  the  Constitution  as  to  limit  and  restrain  it 
within  the  narrowest  bounds,  or  so  as  to  expand  and  en 
large  it,  almost  at  will.  To  those  of  us  who  believe  in  a 
superintending  Providence,  it  may  be  considered  provi 
dential  that  John  Marshall,  at  this  crisis,  was  placed  at 
the  head  of  the  court. 


319  Connecticut  —  Address  by  Charles  E.  Perkins. 

Nor  was  this  a  mere  theoretical  division  of  opinion  be 
tween  the  two  great  parties;  it  was  a  vital  and  practical 
one.  In  the  words  of  Marshall  himself,  in  his  Life  of 
Washington,  the  country  "  was  divided  into  two  great 
political  parties,  the  one  of  which  contemplated  America 
as  a  Nation,  and  labored  incessantly  to  invest  the  Fed 
eral  head  with  powers  competent  to  the  preservation  of 
the  Union.  The  other  attached  itself  to  the  State  gov 
ernment,  viewed  all  the  powers  of  Congress  with  jealousy, 
and  assented  reluctantly  to  measures  which  would  enable 
the  head  to  act  in  any  respect  independently  of  the  mem 
bers."  This  feeling  was  shown  very  strongly  in  the  con 
vention  which  framed  the  Constitution.  Charles  Pinckney, 
of  South  Carolina,  introduced  a  draft  of  a  Constitution 
commencing,  "We,  the  people  of  the  States  of  New 
Hampshire,  Massachusetts,"  etc.,  enumerating  all  the 
thirteen  States.  If  a  Chief  Justice,  imbued  with  the  lat 
ter  opinions,  had  been  in  Marshall's  place,  the  history  of 
the  United  States  would  have  been  very  different.  For 
tunately  for  us,  John  Marshall's  views  on  this  great  ques 
tion  were  so  clear  and  strong  as  to  fill  his  whole  nature. 
As  a  soldier  he  had  gone  through  that  winter  of  starva 
tion  and  frost  at  Yalley  Forge,  where  the  disputes  be 
tween  the  States  composing  the  Confederation  were  such 
that  the  strongest  appeals  of  Washington  could  not  in 
duce  them  to  agree  as  to  raising  even  money  enough  to 
warm,  clothe,  and  feed  the  soldiers  who  were  giving  their 
lives  for  their  protection.  He  had  seen  and  felt  the  in- 
competency  of  that  body,  and  when  elected  a  member  of 
the  Virginia  Convention,  called  to  consider  the  adoption 
of  the  new  Constitution,  he  urged  its  adoption  with  such 
power  of  argument  and  strength  of  reasoning,  that,  though 
opposed  by  many  of  the  ablest  men  in  the  State,  among 


John  Marshall  Memorial.  320 

them  Patrick  Henry,  he  convinced  the  convention  and 
secured  its  adoption. 

With  these  convictions  John  Marshall  assumed  the 
position  of  Chief  Justice  and  began  that  series  of  decis 
ions  which  has  placed  him  at  least  as  high  as  any  judge 
in  any  country.  It  is  difficult  for  us  now  to  imagine  the 
difficulties  of  a  judge  in  his  position  in  the  United  States 
in  1801.  To-day,  with  the  thousands  of  volumes  of  Amer 
ican  reports,  text-books,  digests,  and  other  publications, 
he  is  either  a  poor  or  a  lazy  lawyer  who  cannot  find 
some  authority  in  his  favor  upon  almost  any  question. 
But  then  the  case  was  very  different.  At  the  time  of 
Marshall's  appointment  there  were  just  five  volumes  of 
American  reports,  Kirby  and  the  first  volume  of  Root  in 
Connecticut,  and  three  volumes  of  Dallas  in  Pennsylvania, 
none  of  which  were  published  by  authority  of  law.  There 
were  a  number  of  English  reports,  but  very  many  of  the 
decisions  were  not  adapted  to  our  circumstances  and  in 
stitutions,  and  none  of  them  binding  on  our  courts.  It 
was  necessary  to  decide  cases  as  they  arose  upon  reason 
and  general  principles  of  law.  While  this  was  true  of  all 
legal  questions,  it  was  especially  so  when  the  court  came 
to  construe  the  Constitution.  Not  only  were  there  no 
precedents,  no  decisions  to  aid,  but  there  never  could  have 
been  any,  for  no  such  instrument  ever  existed,  nor  any 
like  it.  The  rules  for  its  construction,  and  the  construc 
tion  itself,  were  to  be  found  only  in  the  minds  of  the 
judges;  and  the  foundations  and  grounds  of  the  decisions 
had  to  be  based  upon  reason  and  sound  sense.  They  must 
be  so  reasoned  out  and  clearly  expressed  as  to  commend 
themselves  to  and  convince  the  minds,  not  only  of  the 
bar,  but  of  the  people  generally ;  and  especially  of  those 
who  had  been  strongly  opposed  to  the  adoption  of  the 


321  Connecticut  —  Address  by  Charles  E.Perkins. 

Constitution,  and  were  desirous  of  limiting  the  powers  of 
government  and  of  its  courts  to  the  utmost  extent  pos 
sible. 

In  view  of  the  history  of  this  nation,  it  is  almost  im 
possible  for  us  to  realize  the  fears  and  apprehensions  of 
many  men  of  ability  and  influence  at  that  time.  They 
seriously  believed  that  there  was  danger  of  the  absolute 
destruction  of  liberty  and  of  State  governments,  and  the 
establishment  of  a  despotism  worse  than  that  of  England 
had  ever  been.  Even  Patrick  Henry  declared  that  "un 
less  some  miraculous  event  happened  the  nation  could  not 
retain  its  liberty,"  and  that  the  new  government  "  would 
destroy  the  State  governments,  and  swallow  the  liberties 
of  the  people ; "  and  many  others  of  great  ability  and 
fame  agreed  with  him. 

Yet,  so  strong  was  the  reasoning,  so  unanswerable  the 
deductions,  and  so  clearly  expressed  were  Marshall's  de 
cisions,  that  they  seem  to  have  convinced  not  only  the 
people  generally,  but  even  those  most  opposed  to  his 
views.  One  of  the  first  and  all-important  questions  which 
arose,  was  as  to  the  power  of  the  Supreme  Court  to  de 
cide  that  laws  either  of  Congress  or  of  the  States  con 
trary  to  any  provision  of  the  Constitution  were  invalid. 
It  will  be  noticed  that  no  such  power  is  directly  given  to 
that  court.  The  Constitution  only  says  that  the  judicial 
power  shall  extend  to  all  cases  arising  under  this  Consti 
tution,  the  laws  of  the  United  States,  and  treaties.  .  .  . 

In  the  celebrated  case  of  Marbury  v.  Madison,  Marshall 
declares  the  principle  which  lies  at  the  foundation  of  his 
decisions  upon  the  construction  of  the  Constitution,  and 
which  is  more  fully  stated  in  later  cases,  namely,  that  the 
United  States  is  a  nation,  created  by  all  the  people  of  the 
United  States  acting  together  as  one  body;  that  the  Con- 

VOL.  1  —  21 


John  Marshall  Memorial.  322 

stitution  is  declared  by  all  the  people  to  be  the  supreme 
law  of  all  of  them;  that  the  will  of  the  people  is  supreme 
and  must  be  obeyed,  and  consequently  no  law  can  exist 
or  be  made  by  any  legislative  body  which  is  contrary  to 
its  provisions. 

It  is  in  this  sense  that  we  may  say  that  Marshall  was 
the  creator  of  the  nation,  and  deserves  to  be  celebrated 
among  those  who  have  deserved  well  of  their  country; 
and  it  is  largely  for  this  reason  that  we  here,  as  well  as 
others  elsewhere,  are  fully  justified  in  commemorating 
John  Marshall's  Day. 

I  do  not  forget  that  there  were  other  members  of  the 
court  who  should  share  in  this  praise.  Marshall  was  but 
one  of  the  six  members  who  at  that  time  formed  the  Su 
preme  Court;  but  so  great  was  his  power  and  influence, 
so  convincing  his  views  and  arguments,  that  his  opinions 
were  almost  invariably  adopted  by  all.  From  his  pen 
came  almost  all  the  decisions  on  constitutional  questions 
during  his  time,  and  there  is,  I  think,  but  one  such  case, 
that  of  Ogden  v.  Saunders,  where  a  majority,  four  out  of 
the  seven  who  then  composed  the  court,  disagreed  with 
him,  and  that  was  only  on  one  point  which  was  not  de 
cisive  of  the  case. 

It  would  take  a  volume  to  give  even  a  brief  account  of 
all  of  Marshall's  opinions  relating  to  the  Constitution, 
and  1  shall  not  attempt  to  do  so.  Even  a  complete  sum 
mary  of  the  principal  questions  decided  would  be  beyond 
my  limits.  During  the  thirty-five  years  that  he  filled 
the  position  of  Chief  Justice,  almost  every  important 
question  which  could  arise  upon  the  construction  of  the 
Constitution  was  not  only  decided,  but  the  decisions  were 
based  upon  such  sound  reasoning  that  they  have  never 
been  attacked.  Some  of  the  most  important  of  these  ques- 


323  Connecticut  —  Address  by  Charles  E.  Perkins. 

tions  may  be  referred  to.  Among  them  were  the  power 
to  regulate  commerce  between  the  States,  and  the  power 
of  the  States  over  foreign  commerce ;  how  far  the  prohi 
bition  to  the  States  of  emitting  bills  of  credit  extended; 
the  nature  and  obligation  of  contracts,  and  how  far  the 
States  might  affect  them;  the  power  in  the  State  to  tax 
creations  of  the  Federal  government;  the  power  of  the 
States  over  Federal  officers;  the  power  of  the  Supreme 
Court  to  revise  the  laws  of  the  States,  or  the  judgments 
of  the  State  courts,  and  many  others. 

In  all  of  these  it  must  be  remembered  that  then  there 
were  no  precedents,  no  rules  of  decision  to  follow.  They 
must  all  be  reasoned  out  by  the  powers  of  the  mind 
alone,  and  in  the  ability  to  do  this  Marshall  was  pre 
eminent;  in  my  opinion,  above  any  other  judge  who  ever 
lived.  He  has  sometimes  been  called  the  Mansfield  of 
America,  but  I  believe  that  even  Lord  Mansfield,  the 
most  distinguished  of  English  judges,  if  placed  in  Mar 
shall's  position,  could  not  have  filled  it  so  well.  There 
may  have  been  other  men  who  could  have  done  what 
Marshall  did ;  it  is  enough  for  us  to  say  that  no  one  else 
ever  did.  He  fully  and  thoroughly  believed  that  the 
whole  people  of  the  country  intended  by  the  Constitu 
tion  to  form  a  government  of  the  whole  country  which 
would  be  supreme  in  the  powers  given  to  it,  and  in  the 
authority  to  enforce  them;  which  would  represent  the 
people  of  a  nation,  be  accountable  to  them  alone,  and 
represent  their  sovereignty;  and  it  was  no  more  to  be 
unduly  limited  in  the  exercise  of  its  proper  powers  than 
to  be  unduly  extended  beyond  them.  With  this  founda 
tion  principle  in  his  mind  he  studied  the  instrument  as  a 
whole,  not  in  isolated  parts,  interpreting  each  provision 
by  others  so  as  to  make  a  perfect  and  uniform  system. 


John  Marshall  Memorial.  324 

His  principles  of  construction  are  admirably  and  con 
cisely  stated  by  himself  in  a  leading  case:  "  To  say  that 
the  intention  of  the  instrument  must  prevail;  that  this 
intention  must  be  collected  from  its  words;  that  its  words 
are  to  be  understood  in  the  sense  in  which  they  are  gen 
erally  used  by  those  for  whom  the  instrument  was  in 
tended;  that  its  provisions  are  neither  to  be  restricted 
into  insignificance,  nor  extended  to  objects  not  compre 
hended  in  them  nor  contemplated  by  its  framers,  is  to 
repeat  what  has  already  been  said  more  at  large,  and  is 
all  that  can  be  necessary." 

Nor  must  we  forget  that  while  Marshall  was  resolved 
to  extend  the  power  of  the  nation  to  its  proper  limits,  he 
was  as  careful  not  to  extend  it  beyond  those  limits.  His 
desires  on  this  point  are  very  clearly  shown  in  the  cele 
brated  case  of  McCulloch  v.  Maryland,  the  question  in 
which  was  the  right  of  the  State  of  Maryland  to  tax  a 
branch  of  the  United  States  Bank,  a  corporation  created 
by  Congress  as  a  part  of  the  financial  administration  of 
the  government.  The  case  was  especially  interesting  as 
the  United  States  claimed  that  the  tax  law  of  the  State 
was  invalid  as  contrary  to  the  Constitution,  and  the  State 
claimed  that  the  Act  of  Congress  creating  the  bank  was 
invalid,  as  beyond  the  powers  given  to  Congress.  In  his 
opinion,  Marshall  first  discusses  the  last  point.  He  ad 
mitted  that  the  Constitution  gave  no  express  power  to 
create  a  bank,  in  terms,  but  held  that  it  existed  as  a  part 
of  the  power  "  to  make  all  laws  that  shall  be  necessary 
and  proper  to  carry  into  execution  the  powers  given  to 
the  government,"  saying  "Let  the  end  be  legitimate,  let 
it  be  within  the  scope  of  the  Constitution,  and  all  means 
which  are  appropriate,  which  are  plainly  adapted  to  that 
end,  which  are  not  prohibited  but  consist  with  the  letter 
and  spirit  of  the  Constitution,  are  constitutional." 


325  Connecticut  —  Address  by  Charles  E.  Perkins. 

This,  I  believe,  is  the  furthest  extent  to  which  Marshall 
ever  carried  the  doctrine  of  powers  not  directly  given  by 
the  Constitution,  but  only  to  be  implied  from  it.  That 
doctrine,  first  enunciated  by  him,  has  been  questioned  by 
those  who  may  be  called  strict  constructionists,  and  Mar 
shall  has  been  criticised  and  accused  of  unduly  and  im 
properly  extending  the  powers  of  government.  Of  course, 
such  a  principle,  like  most  others,  may  be  carried  to  too 
great  an  extent.  It  will  appear,  however,  to  any  un 
prejudiced  observer  of  Marshall's  opinions,  and  of  the 
reasoning  by  which  he  establishes  the  doctrine,  that  it  is 
an  absolutely  necessary  one,  without  which  not  only  the 
operations  of  the  government  would  be  seriously  embar 
rassed,  but  almost  destroyed.  In  the  final  analysis  it  will 
be  seen  that  the  real  objection  has  always  been  to  the 
application  of  the  principle  to  particular  instances,  rather 
than  to  the  principle  itself. 

Upon  the  other  question  in  the  case,  it  having  been  once 
established  that  the  bank  was  a  necessary  and  proper 
instrument  to  carry  on  the  financial  operations  of  the 
government,  the  want  of  power  in  the  States  to  tax  it 
was  clear.  That  power,  if  it  existed,  might  be  carried  so 
far  as  to  destroy,  which  would  be  inconsistent  with  the 
power  to  create.  Nowhere  is  Marshall's  sound  judgment 
better  shown  than  in  the  manner  in  which  he  avoided 
both  too  broad  and  too  narrow  a  construction  of  the  Con 
stitution.  At  the  time  of  his  appointment,  one  party 
believed  that  he  would  extend  the  power  of  the  govern 
ment  to  the  extent  desired  by  the  most  ardent  Federalists; 
and  on  the  other  hand  so  reasonable  a  Federalist  as  Wol- 
cott  of  Connecticut  said  that  Marshall  "  would  construe 
the  Constitution  like  a  penal  statute."  That  he  disap 
pointed  both  his  friends  and  his  opponents,  and  laid  down 


John  Marshall  Memorial.  326 

principles  of  construction  which  have  been  approved  and 
followed  down  to  the  present  day,  is  the  highest  possible 
compliment  to  his  sagacity. 

But  although  it  is  his  opinions  on  constitutional  ques 
tions  that  have  given  Marshall  his  greatest  fame,  yet  he 
showed  no  less  ability  as  a  judge  upon  all  questions  which 
arose  in  his  time.  It  is  wonderful  to  see  how,  after  a 
practice  of  only  twenty  years  at  the  bar  before  coming 
to  the  bench,  questions  arising  in  admiralty  law,  com 
mercial  law,  land  law,  international  law,  every  kind  of 
question  which  could  come  before  the  court,  were  con 
sidered  by  him,  and  decided  with  a  power  of  reasoning, 
a  knowledge  of  authorities,  and  a  clearness  of  expression 
which  alone  would  have  given  him  rank  among  the  high 
est  judges  of  the  world.  In  many  of  these  cases  also, 
especially  admiralty  and  prize  cases,  and  cases  arising 
under  the  embargo  and  non-intercourse  acts,  new  questions 
continually  arose  for  which  there  were  no  precedents,  and 
in  which  it  became  necessary  to  determine  broad  general 
principles,  and  apply  them  to  new  and  complicated  facts, 
and  sometimes  to  create  the  law  itself.  Many  of  the 
most  difficult  and  important  opinions  on  these  subjects 
came  from  his  pen,  and  where  they  were  from  those  of 
others,  the  method  of  argument  shows  traces  of  the 
influence  of  his  mind. 

He  showed  the  same  ability  in  trying  cases  while  hold 
ing  the  Circuit  Courts.  It  appears  that  he  had  serious 
doubts  as  to  the  power  of  Congress  to  provide  that  Jus 
tices  of  the  Supreme  Court  should  be  required  to  act  as 
Judges  of  the  Circuit  Courts,  but  yielded  his  opinion  to 
the  views  of  the  other  justices  and  the  practice  before  he 
was  appointed. 

The  most  important  case   in   which  he  sat  at  the 


327  Connecticut  —  Address  by  Charles  E.  Perkins. 

circuit  was  the  celebrated  prosecution  of  Aaron  Burr  for 
treason,  and  here  he  showed  not  only  his  ability,  but  his 
courage  and  independence  in  asserting  and  maintaining 
the  power  of  the  courts,  and  withstanding  public  senti 
ment.  This  appears  in  his  decision  upon  the  memorable 
motion  made  by  Burr's  counsel  for  a  subpoena  duces  tecum, 
addressed  to  Jefferson,  then  President,  ordering  him  to 
produce  upon  the  trial  a  letter  written  to  him  by  General 
Wilkinson.  Jefferson,  who  had  a  high  opinion  both  of 
himself  and  his  office,  indignant  at  being  treated  like  an 
ordinary  witness,  instructed  the  United  States  Attorney- 
General  to  resist  the  motion,  and  intimated  very  strongly 
that  the  court  had  no  power  to  call  upon  him  to  bring 
State  papers  before  it,  and  moreover  that  if  the  court 
should  do  so  he  would  not  obey. 

It  was  a  difficult  position,  for  as  the  court  was  a  United 
States  court,  only  the  authorities  of  the  United  States 
could  be  called  upon  to  enforce  its  order,  and  they  were 
completely  in  Jefferson's  hands;  but  Marshall  was  equal 
to  the  occasion.  He  declared  it  to  be  his  duty  to  issue 
the  subpoena  without  regard  to  consequences,  and  so  firm 
was  he  that  Jefferson  at  last  yielded,  and  sent  the  letter , 
to  the  Attorney -General  to  be  produced  if  necessary. 

The  same  independence  was  shown  in  his  rulings  upon 
the  trial.  Whatever  may  be  believed  of  Burr's  real  mo 
tives  and  objects,  there  was  a  strong  feeling  throughout 
the  entire  community  that  he  was  conspiring  against  the 
integrity  of  the  Union.  Jefferson  firmly  so  believed,  and 
all  the  power  and  influence  which  the  government  could 
command  was  exerted  to  obtain  Burr's  conviction.  Curi 
ously  enough  the  case  turned  upon  the  question  of  the 
admissibility  of  evidence.  The  overt  act  of  treason  al 
leged  in  the  indictment  was  the  levying  of  war  against 


John  Marshall  Memorial.  328 

the  United  States  at  Blennerhassett's  Island  in  the  Ohio 
River.  The  prosecution  having  offered  evidence  to  prove 
acts  of  other  persons  at  the  island,  which  it  was  claimed 
constituted  levying  war,  then  proposed  to  connect  Burr 
with  the  transaction  by  collateral  testimony,  while  ad 
mitting  that  he  was  not  in  fact  present.  This  evidence 
was  objected  to  as  not  admissible  under  the  indictment, 
and  it  was  seen  at  once  that  the  case  turned  upon  the 
admissibility  of  this  evidence.  Probably  no  question  of 
evidence  was  ever  argued  so  thoroughly  and  at  such 
length.  The  discussion  lasted  a  whole  week;  all  of  the 
eight  able  lawyers  employed  on  the  case  were  heard  at 
full  length,  and  the  abstract  of  arguments,  with  the  opin 
ion  of  the  court,  occupies  sixty  printed  pages  of  the  re 
port  of  the  trial.  In  an  elaborate  opinion  the  Chief  Jus 
tice  declared  the  evidence  inadmissible.  That  ended  the 
prosecution,  and  the  next  day  the  jury,  under  the  charge 
of  the  court,  acquitted  Burr. 

In  the  language  of  Wirt,  one  of  the  counsel  for  the 
prosecution,  "  Marshall  has  stepped  in  between  Burr  and 
death."  Nor  was  this  decision  made  without  full  knowl 
edge  of  the  public  feeling  on  the  subject,  which  was  more 
than  hinted  at  by  counsel,  but  the  suggestion  was  met  by 
words  which  may  well  be  commended  to  the  considera 
tion  of  every  judge.  "That  this  court  dares  not  usurp 
power,"  said  he  in  his  charge  to  the  jury,  "  is  most  true. 
That  this  court  dares  not  shrink  from  its  duty  is  also  true. 
No  man  is  desirous  of  becoming  the  peculiar  subject  of 
calumny.  No  man,  might  he  let  the  bitter  cup  pass  from 
him  without  self-reproach,  would  drain  it  to  the  bottom. 
But  if  he  have  no  choice  in  the  case,  if  there  be  no  al 
ternative  presented  to  him  but  a  dereliction  of  duty  or 
the  opprobrium  of  those  who  are  denominated  the  world, 


329  Connecticut— Address  by  Charles  E.  Perkins. 

he  merits  the  contempt  as  well  as  the  indignation  of  his 
country  who  can  hesitate  which  to  embrace." 

The  disappointment  of  the  country  at  the  result  of  the 
trial  was  great,  and  criticism  upon  the  decision  was  se 
vere,  but  Marshall  was  unmoved.  He  believed  he  had 
done  his  duty  as  a  judge  and  was  content  to  await  the 
verdict  of  posterity,  which  has  been  that  no  State  trial 
has  ever  been  conducted  with  more  impartial  regard  for 
the  State  and  for  the  prisoner. 

Sitting  alone  in  the  Circuit  Courts,  his  finest  qualities 
were  perhaps  more  clearly  shown  than  at  the  head  of  the 
Supreme  Court.  His  serene  dignity  which  imposed  re 
spect  on  all,  his  patience  in  listening,  his  comprehension 
of  every  point  made,  the  accuracy  of  his  rulings,  and  the 
clearness  and  correctness  of  his  charges  to  the  jury,  made 
him  as  nearly  a  perfect  judge  as  it  is  possible  for  a  mere 
mortal  man  to  be. 

I  have  thus  briefly,  and  most  inadequately,  touched 
upon  the  judicial  career  of  this  great  man,  which  covered 
so  many  years  and  involved  so  much  labor.  His  decisions, 
if  printed  together,  would  fill  thirty  or  more  volumes, 
and,  for  reasons  I  have  referred  to,  required  more  time, 
thought,  and  labor  than  opinions  generally  do.  Amid 
all  this  labor  he  found  time  to  prepare  a  most  complete 
and  accurate  Life  of  Washington,  which  he  afterward 
revised  for  a  second  edition,  besides  preparing  an  edition 
for  the  use  of  schools.  .  .  . 

As  a  man,  Marshall  appears  to  have  been  as  near  per 
fection  in  disposition,  habits,  and  conduct  as  it  is  possible 
for  a  mortal  man  to  be.  It  is  the  universal  testimony  that 
from  youth  to  his  death  he  was  one  of  the  kindest  and  most 
warm-hearted  of  men.  His  honor  and  integrity  were 
without  the  slightest  stain.  He  had  no  vices  and,  I  may 


John  Marshall  Memorial.  330 

almost  say,  no  weaknesses.  In  spite  of  his  eminent  tal 
ents,  his  high  positions,  and  his  great  reputation,  there 
was  no  tinge  of  conceit  or  trace  of  assumption.  His  fam 
ily  relations  were  all  marked  by  the  utmost  kindness  and 
affection.  His  charities  were  constant  and  great.  He 
bore  no  malice  toward  those  who  offended  or  injured  him. 
He  was  a  sincere  Christian  and  believed  in  and  obeyed 
the  commands  of  the  Bible. 

The  death  of  Marshall  touched  the  feelings  of  the  whole 
great  nation  for  which  he  had  done  so  much,  and  which, 
in  a  sense,  owed  its  existence  as  a  nation  to  him.  Through 
out  the  country  meetings  were  held,  not  only  by  the  Bar, 
but  by  the  public,  and  the  ablest  men  in  the  country  pro 
nounced  eulogies  upon  his  character.  Among  them  we 
find  the  names  of  Webster,  Kent,  Story,  Binney,  Sergeant, 
and  many  others.  They  were  unanimous  in  their  respect 
for  his  abilities  and  great  services,  and  all  expressed  the 
greatest  admiration  and  love  for  the  man.  One  of  the 
most  striking  passages  I  find  in  one  of  the  resolutions  of 
the  Bar  of  Charleston,  South  Carolina,  of  all  the  States 
the  one  most  opposed  to  Marshall's  opinions  as  to  the 
proper  construction  of  the  Constitution.  It  is  as  follows : 
"  Though  his  authority  as  Chief  Justice  of  the  United 
States  was  protracted  far  beyond  the  ordinary  term  of 
public  life,  no  man  dared  covet  his  place  or  express  a 
wish  to  see  it  filled  by  another.  Even  the  spirit  of  party 
respected  the  unsullied  purity  of  the  Judge;  and  the 
fame  of  the  Chief  Justice  has  justified  the  wisdom  of  the 
Constitution,  and  reconciled  the  jealousy  of  freedom  to 
the  independence  of  the  judiciary." 

A  study  of  the  character  and  life  of  Marshall  would  be 
beneficial  to  any  one  as  an  example  to  be  followed,  but 
to  none  so  much  as  to  those  who  have  just  been,  or  are 


331  Connecticut — Address  by  Simeon  E.  Baldwin. 

about  to  be,  admitted  to  the  Bar.  It  does  not  come  to 
all  of  us  to  be  judges,  nor  to  those  who  are  judges,  what 
ever  may  be  their  talents,  does  the  opportunity  come  to 
rival  Marshall's  great  fame.  But  every  one  of  us  may 
hold  him  up  before  us  as  an  example,  and  feel  that  the 
nearer  we  can  conform  our  lives  and  conduct  to  his,  the 
nearer  we  shall  come  to  the  highest  perfection  of  the 
man,  the  lawyer,  and  the  judge. 

Address  by  Simeon  E.  Baldwin. 

There  is  something  very  impressive  in  this  gathering. 
The  Bar  of  Connecticut  is  here,  but  it  is  not  simply  a 
gathering  of  the  Bar.  The  State  is  here  in  the  presence 
of  His  Excellency  the  Governor,  but  it  is  not  simply  a 
gathering  in  the  name  of  the  State,  for  you  meet  within 
the  walls  of  the  great  University  of  Connecticut,  which 
is  yet  more  than  the  University  of  Connecticut.  Here 
she  has  her  home,  but  where,  where  are  the  bounds  of 
the  influence  of  Yale  ? 

And  why  is  it  that  the  University  on  this  occasion 
here  in  Connecticut,  and  at  Harvard  also,  meets  the  Bar 
and  the  State  to  celebrate  this  day  ? 

There  are  two  reasons:  first,  that  the  University,  the 
modern  University  in  America,  makes  a  large  part  of 
her  life  work  the  teaching  of  political  science,  and  that 
all  thoughtful  students  of  political  science  have  come  to 
feel  that,  in  governments  under  written  constitutions  like 
ours,  the  safety  of  the  State  depends  upon  the  intelli 
gence  and  firmness  of  the  judiciary;  and  John  Marshall 
stands,  more  than  any  other  man,  for  the  judiciary  of 
America. 

And  the  second  reason  is  that  Marshall  was  one  of  the 


John  Marshall  Memorial.  332 

first-born  sons  of  the  American  Law  School.  "We  owe  it 
to  Jefferson  that  the  first  University  course  in  law  offered 
in  America  was  given  at  William  and  Mary  College  dur 
ing  the  stirring  days  of  the  Eevolution.  It  was  in  1779 
that  Jefferson,  revolutionizing  the  curriculum  of  William 
and  Mary,  striking  out  chairs  he  deemed  superfluous, 
brought  in  the  chair  of  the  law  of  nature  and  the  law  of 
nations  and  municipal  law,  and  appointed  to  fill  it  one  of 
the  greatest  judges  whom  Yirginia  has  ever  produced, 
Chancellor  Wythe,  a  signer  of  the  Declaration  of  Inde 
pendence. 

Marshall  was  then  an  officer  in  the  Continental  Army. 
He  had  begun  the  study  of  law  at  eighteen.  He  had 
pursued  it  for  a  year  or  two  in  a  country  office,  then 
entered  the  army,  and  during  a  temporary  lull  in  the 
war  came  to  William  and  Mary  to  be  one  of  the  first 
class  under  Chancellor  Wythe.  The  country  owes  a 
great  debt  to  Wythe  and  to  Jefferson  for  having  given 
this  young  law  student  the  opportunity  of  learning,  not 
only  the  municipal  law  of  Yirginia,  which  almost  any 
one  could  teach,  but  the  law  of  nature  and  of  nations, 
which  few  could  teach,  but  which  Wythe  could. 

Much  has  been  said  and  justly  said  in  the  press  as  this 
celebration  drew  on,  and  has  been  said  to-day,  of  Mar 
shall  as  a  constitutional  lawyer.  I  am  not  sure  but  his 
work  for  American  law  was  even  greater  as  a  judge,  in 
shaping  what  by  us  was  to  be  accepted  as  international 
law.  The  number  of  causes  involving  constitutional  points 
decided  while  Marshall  was  on  the  bench  was  about 
sixty.  The  number  of  causes  turning  on  points  of  inter 
national  law  decided  during  the  same  period  was  over 
one  hundred,  and  they  were  important  questions  and 
serious  questions. 


333  Connecticut  —  Address  by  Simeon  E.  Baldwin. 

The  judiciary  of  a  country  like  ours,  where  the  Judici 
ary  is  independent  of  the  Executive,  is  a  great  power  in 
making  for  war  or  in  making  for  peace,  with  respect  to 
its  power  to  decide  questions  of  international  meaning,— 
prize  cases;  cases  such  as  the  Behring  Sea  controversy 
recently  called  forth.  Marshall's  maiden  opinion  was  one 
turning  on  international  law,  in  the  case  of  The  Amelia, 
delivered  at  the  August  term  of  the  court  in  1801.  At 
least  three  doubtful  points  of  international  law,  involv 
ing  the  rights  of  neutrals,  came  before  him  in  that  case, 
and  the  decision  gave  form  and  precision  where  form  and 
precision  before  had  been  wanting.  And  that  was  but 
the  first,  as  I  have  said,  of  a  long  line.  I  might  weary 
you  with  speaking  of  the  points  that  Marshall  made  clear 
which  before  were  not,  in  the  field  of  the  laws  of  nations ; 
but  let  me  say  this:  The  highest  court  in  England,  not 
many  years  ago,  having  occasion  to  consider  the  rights 
of  a  foreign  sovereign  as  to  property  coming  on  English 
soil,  said  that  any  student,  any  judge,  who  had  occasion 
to  investigate  that  question,  must  go  first  to  the  opinion 
of  Chief  Justice  Marshall  of  the  United  States,  in  the  case 
of  The  Exchange. 

Marshall,  then,  won  his  spurs  as  a  judge,  not  simply  as 
a  constitutional  lawyer,  but  as  an  international  lawyer. 

And  now  let  me  say  another  thing  with  reference  to 
why  this  University  may  welcome  and  celebrate  this  clay. 
It  has  been  the  tradition  of  this  University  in  organizing 
its  Law  Department  not  to  shut  its  doors  against  those 
who  are  not  college  graduates.  If  John  Marshall  were 
to  come  to-day  to  some  law  schools  in  the  United  States, 
as  he  was  at  twenty-four,  he  could  not  enter,  because  he 
was  not  a  college  graduate. 

The  college  can  do  much  for  a  man.     The  college  can 


John  Marshall  Memorial.  334 

lift,  broaden,  inspire,  but  it  cannot  create  the  native  fac 
ulty.  After  all,  the  native  faculty  that  is  in  the  man  is 
the  real  title  to  permanent  and  lasting  success. 

And  so  I  say,  Marshall  came  to  William  and  Mary  as 
to  a  University,  untrained  by  college,  undisciplined  by 
college  life ;  but  well  disciplined  by  patient  reading,  by 
deep  thought,  by  participation  in  the  school  of  life  during 
those  stirring  days  of  the  Revolution.  By  the  camp-fires 
of  Yalley  Forge,  in  the  watches  of  the  night,  in  quiet 
thought,  in  solitary  meditation  he  had  educated  himself; 
and  the  man  that  does  that  and  does  it  well  has  done 
more  for  himself  than  even  a  college  could. 

Mention  has  been  made  of  the  contest  between  Mar 
shall  and  Jefferson  in  the  case  of  Burr.  Jefferson  was  no 
friend  to  Marshall,  and  yet  he  was  his  best  friend,  for  it 
was  Jefferson,  as  I  have  said,  who,  by  revolutionizing  the 
curriculum  of  "William  and  Mary,  made  it  possible  for 
Marshall  to  study  into  the  real  foundations  of  the  law. 
It  was  Jefferson  in  that  way  who  made  possible  Marshall's 
great  career  — a  career  called  great  not  only  by  Americans, 
but  wherever  international  law  is  known  and  respected. 

Address  by  Nathaniel  Shipman. 

The  analyses,  by  Mr.  Perkins  and  by  Judge  Baldwin, 
of  the  constitutional  law  of  this  country,  which  Judge 
Marshall  created,  and  his  contribution  to  the  international 
law  of  the  civilized  world,  leave  nothing  to  be  said  upon 
those  subjects. 

In  the  development  of  the  system  of  common  law,  and 
of  equity,  which  our  ancestors  brought  with  them  from 
their  English  homes,  and  to  which  they  adhered  with  re 
spect,  and  sometimes  with  reverence,  the  Chief  Justice 


335  Connecticut  —  Address  by  Nathaniel  Shipman. 

was  forcibly  logical,  and  forever  instructive.  Not  to  go 
into  details,  the  trial  of  Aaron  Burr,  to  which  Mr.  Perkins 
has  alluded,  is  a  classic  never  equaled  and  not  yet  ap 
proached.  The  unerring  self-control  by  which  the  pre 
siding  judge  mentally  rose  above  the  mists  and  miasma 
of  popular  excitement,  and  the  clearness  of  judgment 
which  fastened  upon  and  grappled  with  the  central  fact 
of  the  case,  were  never  more  perfectly  exhibited  than  in 
the  trial  of  Colonel  Burr ;  and  upon  that  trial  alone  Mar 
shall's  reputation  as  a  great  judge  could  safely  rest. 

There  are  two  things  which  I  want  to  say  about  Mar 
shall's  judicial  career.  The  first  is  this:  After  studying 
his  opinions,  and  before  reading  either  his  biographies  or 
any  essays  upon  his  character,  every  student  from  1801 
to  the  present  moment  has  been  struck  by  the  singular 
simplicity  and  clearness  of  statement  and  by  the  natural 
ness  of  the  argument  of  the  great  Chief  Justice.  As  the 
student  advances  from  sentence  to  sentence,  he  says  to 
himself,  "  Of  course  that  proposition  is  true  and  is  self-evi 
dent;  I  could  have  thought  that,  and  I  could  have  said 
it,"  until,  when  he  has  finished,  and  has  taken  in  the 
massive  force  and  power  of  the  linked  and  completed 
argument,  then  he  says,  "This  is,  as  an  exhibition  of  mental 
strength,  incomparable." 

The  second  thing  is  Marshall's  insight  into  the  nature 
of  our  dual  system  of  government,  and  his  foresight  of 
the  dangers  from  lax  theories  in  regard  to  the  supremacy 
of  the  Federal  government  in  its  own  realm.  One  of  his 
successors  on  the  Bench,  Justice  Daniel,  also  from  Vir 
ginia,  who,  as  Justice  Brown  has  told  us,  wrote  eighty- 
four  opinions  and  dissented  a  hundred  and  eleven  times 
during  the  nineteen  years  that  he  occupied  the  position, 
generally  spoke  of  the  communities  now  constituting 


John  Marshall  Memorial.  336 

the  States  of  the  Confederacy,  and  described  the  Federal 
government  as  a  creature  or  agent  of  the  States.  In  the 
mind  of  Marshall,  who,  somebody  has  said,  was  a  price 
less  legacy  of  the  dying  Federalist  party  to  the  country, 
and  who  understood  and  appreciated  and  abhorred  the 
idea  of  a  confederacy,  these  theories  of  the  Justice  Daniel 
class  condemned  the  country  to  perpetual  weakness  and 
impotence. 

The  present  working,  efficient  capacity  of  the  Consti 
tution,  the  strength  of  the  power  and  dignity  which  the 
Federal  government  now  possesses,  are  due  to  Marshall's 
wisdom  and  foresight.  If  a  man  of  narrow  theories,  or 
of  weak  courage,  had  been  Chief  Justice  when  Cohens 
v.  Yirginia  was  decided,  the  country  would  have  been  a 
petty,  third-rate  power,  with  not  much  more  vigor  and 
capability  of  expansion  than  it  had  under  the  Articles  of 
Confederation.  Marshall's  comprehension  of  the  powers  of 
the  Federal  government  averted  helpless  paralysis,  and 
enabled  Justice  Bradley  to  declare,  in  the  Siebold  case, 
that  the  government  of  the  United  States  may,  by  reason 
of  physical  force  exercised  through  its  official  agents, 
execute  on  every  foot  of  American  soil  the  powers  and 
functions  which  belong  to  it.  The  same  comprehension 
enabled  President  Cleveland,  in  response  to  the  impudent 
demand  of  Governor  Altgeld,  to  reply  with  grim  earn 
estness  that  the  United  States  would  protect  with  its 
troops  the  mails  of  the  United  States  against  unlawful 
obstruction  in  the  city  of  Chicago.  It  enabled  Justice 
Brewer,  in  the  Debs  case,  to  demonstrate  that  the  courts 
of  the  United  States  have  also  power  to  remove  or  re 
strain  such  obstructions,  and  to  punish  disobedience  of 
its  orders. 

Now,  gentlemen,  just  look  at  that  triple  set  of  decis- 


337  Connecticut—  Address  by  Nathaniel  Shipman. 

ions  which  came  either  from  the  Supreme  Court,  or  from 
the  Attorney-General,  and  President  Cleveland.  The 
first,  that  the  United  States  could,  by  its  marshals  and 
its  peace  officers,  carry  out  upon  every  foot  of  soil  the 
laws  of  the  United  States;  the  second,  that  it  could  use 
its  troops  to  protect  the  property  of  the  United  States; 
and  the  third,  that  its  courts  would  see  to  it  that  the 
functions  of  the  United  States  were  not  to  be  suppressed 
or  restrained  by  anarchistic  force,  or  any  other  kind  of 
force.  Any  weaker  construction  of  the  powers  of  the 
government  would  have  resulted  in  the  triumph  of  an 
archy;  and  John  Marshall,  plain  of  speech  and  modest  of 
manner,  wrote  for  all  time,  upon  a  dozen  quires  of  fools 
cap  paper,  the  principles  which  made  us  a  nation.  .  .  . 
The  ultimate  aim  at  which  we  are  still  striving  is  the 
truth,  for  truth  is  eternal  and  success  is  temporal.  A 
lawyer  must  admit  that  the  search  in  his  profession  is 
not,  like  that  of  a  clergyman,  after  the  noblest,  highest 
verities  which  belong  to  man's  spiritual  nature;  it  is  for 
the  highest  attainment  in  the  relation  of  nations  to  each 
other,  and  in  the  ethics  which  govern  human  conduct 
and  society;  but  we  are  in  search  of  the  truth,  the  truth 
which  was  revealed  from  time  to  time  to  Marshall  by  an 
almost  instantaneous  clearness  of  vision.  It  may  be 
found  by  us  after  a  more  prolonged  search,  during  which 
it  is  veiled  for  a  time,  but  the  object  of  us  all,  students 
and  lawyers,  whether  judges  or  4n  other  stations,  is  the 
same,  to  find  the  truth  and  proclaim  rightness.  In  that 
quest,  gentlemen,  we  have  paused  to-day  to  pay  tribute  to 
the  greatest  leader  of  American  lawyers,  John  Marshall. 
VOL.  1  —  22 


STATE  OF  NEW  YORK. 

The  principal  celebration  in  this  State  was  held  at 
Albany,  in  the  Assembly  Chamber  of  the  State  Capitol, 
at  three  P.  M.,  under  the  joint  auspices  of  the  New  York 
State  Bar  Association  and  the  Association  of  the  Bar  of 
the  City  of  New  York.  A  large  and  distinguished  au 
dience  of  men  and  women  was  present,  including  the 
Chief  Executive  of  the  State,  Governor  Odell,  the  Chief 
Judge  and  Associate  Judges  of  the  Court  of  Appeals  in 
their  robes,  and  other  members  of  the  Federal  and  State 
judiciary,  members  of  the  Legislature,  and  a  large  num 
ber  of  the  members  of  the  Bar,  including  many  of  the 
Committee  of  One  Hundred  appointed  by  the  Associa 
tion  of  the  Bar  of  the  City  of  New  York  specially  to 
attend  the  celebration.1  After  appropriate  musical  selec 
tions  rendered  by  an  orchestra,  the  Keverend  A.  Y.  Y. 
Raymond,  President  of  Union  College,  opened  the  pro 
ceedings  with  prayer. 

1  The  names  of  the  Committee  of  One  Hundred  are  as  follows: 

COMMITTEE  APPOINTED  TO  REPRESENT  THE  ASSOCIATION  ON 
FEBRUARY  4,  1901. 

Ex- Presidents: 

William  M.  Evarts,  James  C.  Carter,  Joseph  H.  Choate, 

William  Allen  Butler,  Frederic  R.  Coudert,  Joseph  Larocque. 

Wheeler  H.  Peckham, 

Officers,  Standing  Committees  and  Members  of  the  Association. 

Avery  D.  Andrews  Abel  E.  Blackmar  James  Byrne 

Courtland  V.  Anable  Cephas  Brainerd  John  L.  Cadwalader 

Henry  DeForest  Baldwin         Silas  B.  Brownell  Michael  H.  Cardozo 

John  A.  Beall  Augustus  C.  Brown  John  H.  Cole 

Charles  K.  Beekman  Alfred  S.  Brown  William  N.  Cohen 

Lucius  H.  Beers  Charles  C.  Burlingham  George  S.  Coleman 

Samuel  R.  Betts  Charles  H.  Butler  Frederick  H.  Comstock 


339 


New  York  —  Address  of  Mr.  Hornblower. 


AVilliam  B.  Hornblower,  as  President  of  the  Xew  York 
State  Bar  Association,  and  at  the  request  of  John  E.  Par 
sons,  President  of  the  Association  of  the  Bar  of  the  City 
of  New  York,  introduced,  with  the  following  remarks,  as 
the  presiding  officer,  Mr.  Chief  Judge  Alton  B.  Parker: 


Address  of  Mr.  Hornblower. 

As  this  celebration  is  held  under  the  joint  auspices  of 
the  JS"ew  York  State  Bar  Association  and  of  the  Bar  As 
sociation  of  the  City  of  New  York,  it  devolves  upon  me, 
in  my  official  character  as  President  of  the  State  Bar  As 
sociation,  to  welcome  you  and  to  introduce  the  presiding 
officer  of  this  occasion.  In  so  doing,  I  shall  not  under 
take  to  usurp  the  functions  of  the  presiding  officer  and  of 
the  orator  of  the  day  by  eulogizing  John  Marshall.  It  is 


Theodore  Connoly 
William  E.  Curtis 

Lewis  Cass  Ledyard 
Franklin  B.  Lord 

B.  Aymar  Sands 
John  M.  Scribner 

William  J.Curtis 

Robert  Lee  Luce 

Lawrence  E.  Sexton 

Paul  D.  Cravath 

Howard  Mansfield 

John  S  Sheppard 

Lewis  L.  Delafield 

H.  Snowden  Marshall 

John  W.  Simpson 

Robert  W.  DeForest 

Newell  Martin 

Eugene  Smith 

George  G.  DeWitt 

David  McUlure 

S.  Sidney  Smith 

William  P.  Dixon 

Payson  Merrill 

Herbert  C.  Smyth 

Edward  F.  Dwight 

Jacob  F  Miller 

Albert  Stickney 

Walter  D.  Edmonds 

R.  Burnham  Moffat 

William  E.  Stiger 

Abraham  I.  Elkus 

Robert  G.  Monroe 

Henry  L.  Stimson 

James  R.  Ely 

John  McLain  Nash 

Henry  W.  Taft 

A.  Leo  Everett 

Edward  D.  O'Brien 

William  L.  Turner 

John  Frankenheimer 

John  C.  O'Connor 

C.  Willett  Van  Nest 

John  A.  Garver 

Hamilton  Odell 

Howard  Van  Sinderen 

Lawrence  Godkin 

David  B.  Ogden 

James  M.  Varnum 

Almon  Goodwin 

Peter  B.  Olney 

J.  Mayhew  Wainwright 

Charles  H.  Gould 

Samuel  H.  Ordway 

Henrv  Galbraith  Ward 

Robert  L.  Harrison 

John  E.  Parsons 

John  De  Witt  Warner 

Lewis  S.  Haslam 

Charles  A.  Peabody,  Jr. 

John  A.  Weekes 

James  W.  Hawes 

Edward  C.  Perkins 

Everett  P.  Wheeler 

Job  E.  Hedges 

John  M.  Perry 

Edwin  B.  Whitney 

Edward  C.  Henderson 

Eugene  A.  Philbin 

David  Wilcox 

Charles  M.  Hough 

Mark  W.  Potter 

Stephen  G.  Williams 

Charles  Bulkley  Hubbell 
Charles  H.  Hughes 

Harrington  Putnam 
Thomas  N.  Rhinelander 

Bronson  Winthrop 
John  S.  Wise 

Francis  C.  Huutington 

Noah  C.  Rogers 

Silas  Wodell 

Adrian  H.  Joline 

Jordan  J.  Rollins 

Edwin  G.  Worcester,  Jr. 

William  A.  Keener 

William  V.  Rowe 

Charles  H.  Young 

George  W.  Kirchway 

Horace  Russell 

George  Zabriskie 

Committee  on  the  Celebration. 

William  B.  Hornblower,  Allan  W.  Evarts,  Burton  N.  Harrison, 

Austen  G.  Fox,  John  G.  Agar. 


John  Marshall  Memorial.  340 

sufficient  for  me  to  say  that,  while  George  Washington 
is  recognized  as  the  Father  of  his  Country  and  Thomas 
Jefferson  as  the  author  of  the  Declaration  of  Independence 
and  their  names  and  deeds  are  household  words  with  all 
Americans,  the  fame  of  John  Marshall  is  more  exclusively 
a  professional  fame  among  our  own  profession,  and  it  is 
fitting  that  on  this  centennial  anniversary  of  his  accession 
to  the  bench  and  to  the  great  office  of  Chief  Justice 
of  the  United  States  an  effort  should  be  made  on  behalf 
of  the  Bar  of  the  country  to  impress  upon  the  minds  of 
their  fellow-citizens  generally  what  they  owe  to  this 
great  jurist. 

The  Bar  Association  of  the  City  of  New  York,  through 
its  Executive  Committee,  appointed  a  special  committee 
to  consider  what  action  should  be  taken  on  their  behalf. 
It  seemed  to  them  that  the  most  fitting  and  dignified 
mode  of  celebrating  the  fame  of  the  great  Chief  Justice 
would  be  by  such  an  occasion  as  this,  where  the  repre 
sentatives  of  the  Bar  of  this  great  State  should  come  to 
gether  in  the  capital  of  the  State,  presided  over  by  the 
head  of  the  State  judiciary  and  addressed  by  one  of  the 
leaders  of  our  State  and  Federal  Bar.  The  Bar  Associa 
tion  of  the  City  of  New  York,  therefore,  instructed  its 
Committee  on  Arrangements  to  co-operate  with  the  State 
Bar  Association  in  arranging  for  this  celebration. 

We  are  not  here  to  celebrate  the  glory  of  a  great  war 
rior,  although  John  Marshall  participated  in  the  War  of 
the  Devolution ;  we  are  not  here  to  celebrate  the  fame  of 
a  great  statesman,  or  a  great  diplomat,  although  Marshall 
was  both;  we  are  here,  as  lawyers,  to  celebrate  the  fame 
of  a  great  lawyer  and  a  great  judge. 

It  is  safe  to  say  that  no  one  man  has  left  a  greater  im 
press,  not  only  on  the  jurisprudence  of  the  country,  but 


341  New  York  —  Address  of  Mr.  Hornblower. 

upon  the  very  framework  of  our  institutions,  than  John 
Marshall.  While  he  did  not  make  the  Constitution  of  the 
United  States,  he  shaped  it  by  his  powerful  and  lucid 
opinions  and  by  his  influence  with  the  great  court  over 
which  he  presided.  Indeed,  it  may  almost  be  said  that, 
if  he  did  not  make  the  Constitution,  he  saved  it;  for  had 
he  not  assumed  his  office  at  the  precise  period  when  he 
did  and  delivered  the  magnificent  series  of  opinions  which 
came  from  his  lips  and  from  his  pen,  which  welded  to 
gether  the  sovereign  and  independent  States  of  the 
Union  and  which  armed  the  Federal  Government  with 
the  power  necessary  to  preserve  our  institutions  while 
guarding  the  reserved  rights  of  the  States  and  the  citizens 
thereof,  the  fair  fabric  which  had  been  constructed  by 
the  Constitutional  Convention  of  1787  and  which  had 
been  so  unwillingly  adopted  by  many  of  the  States,  not 
withstanding  the  urgency  of  such  men  as  Hamilton,  Mad 
ison  and  Jay,  would  have  fallen  to  pieces  under  the  strain 
of  the  conflicting  interests  of  its  various  constituents. 

But  all  this  will  be  told  you  much  better  than  I  can 
tell  it  by  those  who  are  to  follow  me.  We  are  fortunate 
in  having  secured  as  the  orator  of  the  day  that  distin 
guished  and  able  member  of  our  Bar  who  served  so  ac 
ceptably  and  so  usefully  upon  the  Federal  bench  in  the 
Eighth  Circuit,  and  who  is  eminently  qualified  to  portray 
the  character  and  set  forth  the  services  of  John  Marshall. 

It  is  appropriate  that  this  celebration  should  be  presided 
over  by  the  head  of  the  State  judiciary,  the  Chief  Judge 
of  the  Court  of  Appeals.  The  present  incumbent  of  that 
high  office  was  called  to  it  by  the  people  of  the  State  at 
an  unusually  early  age,  and  we  trust  that  he  will  be 
continued  by  the  suffrages  of  his  fellow-citizens  in  that 
position  until  the  revolving  wheel  of  time  shall  have  com- 


John  Marshall  Memorial.  342 

polled  him  to  retire  by  reason  of  the  age  limit  fixed  by 
our  Constitution.  He  is  a  worthy  successor  of  his  able 
predecessors,  such  men  as  Church  and  Folger  and  Ruger 
and  Earl  and  Andrews,  than  whom  no  State  can  claim  a 
more  distinguished  line  of  presiding  officers  for  its  highest 
court. 

Ladies  and  gentlemen,  I  take  pleasure  in  calling  to  pre 
side  over  you  upon  this  occasion  the  Chief  Judge  of  the 
Court  of  Appeals  of  the  State  of  New  York,  the  Hon. 
Alton  B.  Parker. 

Chief  Judge  Parker  introduced  the  orator  of  the  occa 
sion  as  follows: 

Address  of  Mr.  Chief  Judge  Parker. 

While  I  feel  very  grateful  indeed  to  President  Horn- 
blower  for  the  kindly  words  with  which  he  has  introduced 
me,  I  would  have  you  to  know  that  I  appreciate  that  only 
that  part  of  it  is  really  deserved  which  implies  an  ambi 
tion  to  do  my  duty. 

"While  not  unmindful  of  Marshall's  merits  as  a  soldier, 
his  success  as  an  advocate,  his  achievements  as  a  diplo 
mat  and  his  career  as  a  statesman,  it  is,  after  all,  his 
matchless  services  to  the  people  of  this  country  as  Chief 
Justice  during  the  more  than  thirty-four  years  that  he 
discharged  the  duties  of  that  great  office  that  easily  en 
title  his  name  to  be  placed  above  those  of  all  the  other 
great  jurists  of  this  country  on  its  roll  of  fame. 

Although  the  court  had  been  in  existence  eleven  years 
when  he  entered  it,  the  opinion  supporting  the  first  de 
cision  declaring  an  act  of  Congress  unconstitutional  was 
written  by  him  in  Marbury  v.  Madison.  This  famous 
opinion,  which  asserted  for  the  first  time  a  principle 


343  New  York— Address  of  Chief  Judge  Parker. 

which  lies  at  the  very  foundation  of  constitutional  juris 
prudence,  was  followed  by  about  thirty-four  other  opin 
ions,  written  by  him  in  cases  involving  constitutional 
questions,  through  which  it  was  demonstrated  that  the 
capacities  of  the  Federal  Constitution  were  equal  to  all 
the  demands  of  the  Government  that  could  be  properly 
made  upon  it. 

One  of  his  associates  in  the  court  for  many  years,  Mr. 
Justice  Story,  spoke  of  these  opinions  after  the  death  of 
the  Chief  Justice  as  "those  exquisite  judgments,  the 
fruits  of  his  own  unassisted  meditations,  from  which  the 
Court  has  received  so  much  honor."  When  we  recall 
the  names  of  the  great  jurists  who  were  associated  with 
Chief  Justice  Marshall,  we  are  tempted  to  regard  Mr. 
Justice  Story's  statement  as  a  little  too  generous,  and 
yet  the  records  afford  striking  evidence  of  his  command 
ing  position  among  his  brethren,  for  we  find  that  he  not 
only  wrote  more  than  three-fifths  of  all  the  opinions 
written  on  constitutional  questions,  but  that  every  opin 
ion  save  one  in  the  first  volume  of  Cranch's  Reports, 
embracing  the  work  of  the  court  for  two  years,  was  writ 
ten  by  him. 

It  is  true  that  no  other  judge  in  this  country  ever  had 
so  great  an  opportunity,  but  it  is  at  least  doubtful  whether 
any  other  of  our  great  jurists  would  have  proved  so  well 
fitted  for  it  had  the  opportunity  been  presented  to  him 
which  came  to  Chief  Justice  Marshall. 

But,  strong  as  was  his  common  sense,  comprehensive 
his  mental  grasp,  irresistible  his  logic  and  indefatigable 
his  industry,  yet  to  him  was  not  solely  due  those  master 
ful  opinions.  Great  lawyers  like  "Webster,  Pinkney, 
Wirt,  Dexter  and  others  famous  at  the  bar  of  that  Court 
contributed  by  their  illumination  of  the  questions  in- 


John  Marshall  Memorial.  344 

volved  to  the  glorious  results  achieved,  just  as  their 
brethren  at  the  Bar  have  contributed  to  every  judicial 
decision  tending  toward  either  the  harmonious  working 
out  of  our  scheme  of  government  or  the  safeguarding  of 
the  liberties  of  the  citizen.  In  the  same  general  direc 
tion  the  future  —  perhaps  the  immediate  future  —  is  likely 
to  present  questions  of  momentous  public  importance ; 
for  a  careful  observer  of  the  tendency  of  the  times  must 
appreciate  that  other  and  very  different  constitutional 
questions  than  those  passed  on  in  Chief  Justice  Marshall's 
time  will  probably  be  presented  to  both  Federal  and 
State  courts.  Indeed,  there  are  now  pending  in  the  Su 
preme  Court  of  the  United  States  governmental  questions 
of  far-reaching  importance  that  were  probably  not  even 
thought  of  in  Chief  Justice  Marshall's  day. 

It  is  therefore  not  only  just  to  the  memory  of  the 
great  jurist  that  we  meet  in  recognition  of  our  indebted 
ness  as  a  people  for  his  wise  and  brilliant  services  during 
the  formative  period  of  our  governmental  development, 
but  it  is  also  wise  for  us,  in  view  of  the  problems  that 
the  future  has  in  store,  to  turn  aside  from  our  usual  la 
bors  for  a  little  while  to  study  the  great  masterpieces  of 
his  judicial  work  and  recount  his  glorious  achievements, 
to  the  end  that  both  the  Bench  and  the  Bar  may  be 
stimulated  to  emulate  his  example  by  patriotically  striv 
ing  to  have  the  great  questions  of  the  future  disposed  of 
as  they  shall  arise  by  decisions  resting  upon  broad  and 
solid  foundations. 

I  have  the  pleasure  of  introducing  to  you  one  who  has 
achieved  distinction  both  on  the  Bench  and  at  the  Bar  — 
the  Hon.  John  F.  Dillon,  who  will  now  address  you. 


345  New  York— Address  of  John  F.  Dillon. 

Address  of  John  P.  Dillon.1 

A  figure  heroic,  raajestical,  supereminent,  venerable 
and  venerated,  holding  an  unchallenged  primacy  in  our 
legal,  juridical  and  constitutional  history,  is  that  of  John 
Marshall.  When  we  refer  to  him  in  the  Supreme  Court, 
or  when  elsewhere  we  refer  to  that  court,  it  is  not  neces 
sary  to  name  Marshall  —  we  distinguish  him  by  the  title 
of  "  the  Great  Chief  Justice."  He  has  no  parallel  but 
himself,  and,  like  the  Saladin  in  Dante's  vivid  picture  of 
the  immortals,  he  stands  by  himself  apart.  Pinkney's 
saying  is  well  known  —  that  Marshall  was  born  to  be  the 
Chief  Justice  of  any  country  in  which  Providence  should 
cast  his  lot;  and  he  came  to  his  own  one  hundred  years 
ago  this  day,  when,  at  the  first  term  of  the  Supreme 
Court  ever  held  in  the  new  Federal  city  of  "Washington, 
he  put  on  his  robes  of  office,  took  the  oath  to  support  the 
Constitution  (and  well  he  kept  it),  and  assumed  his  place 

1  This  address,  entitled  "A  Commemorative  Address  on  Chief  Jus 
tice  Marshall,"  is  reprinted  from  the  24th  Annual  Report  of  the  New 
York  State  Bar  Association  for  1901.  There  was  prefixed  to  the  ad 
dress,  in  the  official  pamphlet  containing  the  Marshall  Day  proceed 
ings,  published  by  the  State  Bar  Association,  the  following  mottoes: 

"The  Constitution  of  the  United  States  is  a  written  instrument; 
a  recorded  fundamental  law;  it  is  the  bond,  and  the  only  bond,  of 
the  Union  of  these  States;  it  is  all  that  gives  us  a  National  Char 
acter."—  DANIEL  WEBSTER. 

"  No  other  man  did  half  so  much  as  Marshall,  either  to  develop  the 
Constitution  by  expounding  it,  or  to  secure  for  the  judiciary  its 
rightful  place  in  the  government  as  the  living  voice  of  the  Constitu 
tion.  .  .  .  The  Constitution  seemed  not  so  much  to  rise  under 
his  hands  to  its  full  stature,  as  to  be  gradually  unveiled  by  him  till 
it  stood  revealed  in  the  harmonious  perfection  of  the  form  which  its 
framers  had  designed.  That  admirable  flexity  and  capacity  for 
growth  which  characterize  it  beyond  all  other  rigid  or  supreme 
Constitutions  is  largely  due  to  him,  yet  not  more  to  his  courage  than 


John  Marshall  Memorial.  346 

at  the  head  of  a  tribunal  which,  in  its  short  existence  of- 
eleven  years,  had  already  had  four  Chief  Justices.  What 
a  wonderful  transformation.  He  found  the  place  one 
that  no  great  lawyer  coveted;  he  left  it,  after  a  contin 
uous  service  of  thirty-four  years,  the  most  commanding, 
the  most  exalted,  the  most  illustrious  judicial  office  the 
world  has  ever  seen.  These  are  not  words  of  profes 
sional  enthusiasm  or  patriotic  zeal,  but  are  (as  I  trust  this 
address  will  show)  words  of  truth  and  soberness. 

John  Jay,  in  1795,  on  being  elected  Governor  of  New 
York,  resigned  as  Chief  Justice,  and  Rutledge  not  having 
been  confirmed,  and  Gushing  having  declined,  Ellsworth 
was  appointed  in  March,  1796.  Ellsworth  having  served 
until  October,  1799,  and  being  commissioned  as  one  of 
the  Envoys  Extraordinary  to  France,  resigned  the  Chief 
Justiceship  from  Paris  in  November,  1800.  President 
Adams,  without  consulting  Jay,  again  nominated  him  to 

to  his  caution." —  BRYCE,  American  Commonwealth,  VoL  I,  pp.  261, 
375. 

"When,  indeed,  I  look  back  upon  your  judicial  labors  during  a 
period  of  thirty-two  years,  it  is  difficult  to  suppress  astonishment  at 
their  extent  and  variety,  and  at  the  exact  learning,  the  profound 
reasoning  and  the  solid  principles  which  they  everywhere  display. 
Other  judges  have  attained  an  elevated  reputation  by  similar  labors 
in  a  single  department  of  jurisprudence.  But  in  one  department  (it 
need  scarcely  be  said  that  I  allude  to  that  of  constitutional  law)  the 
common  consent  of  your  countrymen  has  admitted  you  to  stand 
without  a  rival.  Posterity  will  assuredly  confirm,  by  its  deliberate 
award,  what  the  present  age  has  approved  as  an  act  of  undisputed 
justice."— Mr.  Justice  STORY  in  the  Dedication,  1833,  of  his  work  on 
the  Constitution  to  MARSHALL.  Life  and  Letters  of  Story,  VoL  II, 
p.  133. 

The  address  also  appeared  in  the  Albany  Law  Journal,  for  March, 
1901,  volume  63,  page  83;  and  in  the  American  Law  Review  for 
March-April,  1901,  volume  xxxv,  page  161. 


347  New  York  —  Address  of  John  F.  Dillon. 

be  Chief  Justice,  and  he  was  confirmed  in  December, 
1800.  Mr.  Adams  strongly  urged  him  to  take  the  place, 
saying:  "Nothing  will  cheer  the  hopes  of  the  best  men 
so  much  as  your  acceptance  of  this  appointment.  You 
have  now  a  great  opportunity  to  render  a  most  signal 
service  to  your  country."  *  In  his  letter  of  declination 
to  President  Adams,  Jay  gave  his  reasons  in  language 
like  a  wail  of  despair.  "I  left  the  bench,"  said  this 
eminent  man  and  patriot,  "perfectly  convinced  that 
under  a  system  so  defective  it  would  not  obtain  the 
energy,  weight  and  dignity  which  was  essential  to  its 
affording  due  support  to  the  national  government;  nor 
acquire  the  public  confidence  and  respect  which,  as  the 
last  resort  of  the  justice  of  the  nation,  it  should  possess. 
Hence  I  am  induced  to  doubt  both  the  propriety  and  / 
expediency  of  my  returning  to  the  bench  under  the 
present  system.  .  .  .  Independently  of  these  consid 
erations,  the  state  of  my  health  removes  every  doubt." 

This  letter  was  written  January  2,  1801,  and  on  the 
twentieth  of  the  same  month  Marshall  was  nominated  by 
President  Adams  and  unanimously  confirmed.  Concern 
ing  this  appointment,  the  youngest  son  of  Marshall,  in  a 
letter  which  was  not  published  until  recently,  relates  that 
in  1825  he  visited  Mr.  Adams  at  Quincy.  "What  occurred 
is  very  characteristic  of  the  second  President.  "  He  gave 
me,"  says  Edward  C.  Marshall, "  a  most  cordial  reception, 
and,  grasping  my  hands,  told  me  that  his  gift  of  Mr.  John 
Marshall  to  the  people  of  the  United  States  was  the 
proudest  act  of  his  life."  The  son  adds  this  interesting 
particular:  "  Some  years  after  this  my  father  told  me  that 
the  appointment  was  a  great  surprise  to  him,  but  afforded 
him  the  highest  gratification,  as,  with  his  tastes,  he  pre- 

1  Carson,  Hist.  Sup.  Court,  p.  191. 


John  Marshall  Memorial.  348 

f erred  to  be  Chief  Justice  to  being  President."1  And 
so,  with  the  century  then  just  opened,  John  Marshall, 
February  4,  1801,  took  his  seat  for  the  first  time  as  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  and 
held  the  place  until  his  death,  July  6,  1835. 

"When  Marshall  became  Chief  Justice  the  American 
Union  had  sixteen  States  —  a  territory  of  900,000  square 
miles,  with  a  population,  in  round  numbers,  of  5,000,000 
—  far  less  than  the  present  population  of  this  Empire 
State  of  New  York.  In  the  century  that  has  since  elapsed, 
the  States,  under  the  stimulus  and  protection  of  repub 
lican  institutions,  have  increased  from  sixteen  to  forty- 
five,  our  territorial  area  —  now  facing  both  of  the  great 
oceans  for  many  thousand  miles  —  has  more  than  quad 
rupled,  and  the  recent  national  census  shows  our  popula 
tion  to  exceed  76,000,000  of  people  —  free,  happy,  pros 
perous  and  united.  These  in  this  western  world  are 
the  marvelous  fruits  of  American  institutions  —  "  broad- 
based  upon  the  people's  will,"-  — and  we  owe  it  all,  with 
the  favor  of  heaven,  to  the  union  of  these  States  under 
the  Federal  Constitution.  This  amazing,  this  unexampled 
growth  —  I  weigh  the  word  —  this  growth,  unexampled 
in  the  history  of  the  world,  has  been  under  the  Constitu 
tion  without  substantial  change  in  its  original  plan  or 
essential  features,  for  the  amendments  adopted  soon  after 
the  Constitution  went  into  effect  and  those  which  were 
afterwards  rendered  necessary  as  the  result  of  the  Civil 
"War  did  not  alter  the  general  scope  or  plan  of  the  Union, 
although  the  latter  amendments  enlarged  somewhat  the 
powers  of  the  general  government  and  abridged  in  cer- 

l  Magruder's  Life  of  Marshall,  164. 


349  New  York  — Address  of  John  F.  Dillon. 

tain  specified  and  most  important  respects  the  powers  of 
the  States. 

It  is  one  of  the  remarkable  phenomena  of  our  history 
that  this  national  development  has  been  possible  under 
a  written  constitution  without  successive  revisions  and 
changes  having  been  found  needful  in  order  to  adapt  it 
to  circumstances  and  conditions  so  novel  and  surprising, 
and  which  no  sagacity  could  have  foreseen  or  imagined. 
It  belongs  to  this  hour,  in  part,  to  inquire  into  the  causes 
of  results  at  once  so  extraordinary  and  so  fortunate. 

On  an  occasion  like  the  present  the  temptation  is  to 
give  a  free  reign  to  our  praise,  and  not  to  estimate  with 
judicial  calmness  the  language  in  which  the  eulogy  is 
pronounced.  In  the  case  of  Marshall  we  have  the  para 
dox  that  the  most  effective  eulogy  is  to  give  it  the  force 
which  comes  from  restraint  and  under-statement.  Con 
temporary  mists  have  cleared  away,  revealing  more  dis 
tinctly  Marshall's  mountainous  magnitude — "like  Ten- 
eriff  or  Atlas  unremoved."  We  can  form  to-day  a  juster 
estimate  of  Marshall  and  of  his  public  services  to  our  pro 
fession  and  to  our  country,  and  of  his  claims  on  our  grati 
tude  and  veneration,  than  was  possible  for  his  contempo 
raries. 

On  the  recommendation  of  the  American  Bar  Associa 
tion,  the  Bar  of  the  United  States  at  the  City  of  Wash 
ington  and  in  the  different  States  are  celebrating  this 
day  in  honor  of  the  centennial  anniversary  of  the  com 
mencement  of  the  judicial  term  of  Chief  Justice  Marshall. 
Its  observance  was  recommended  in  the  annual  message 
of  the  President.  The  spontaneous  and  voluntary  char 
acter  of  this  homage,  on  the  part  of  lawyers  and  laymen 
throughout  the  entire  country,  gives  to  it  its  chiefest 


John  Marshall  Memorial.  350 

value.  It  is,  indeed,  a  most  gratifying  spectacle.  It  is 
in  itself  a  eulogy  more  impressive  than  any  words,  how 
ever  eloquent.  The  universality  and  warmth  of  the  com 
memoration  are  the  more  remarkable  since  Marshall's 
life,  though  full  of  interest,  arising  from  his  long  career 
in  varied  military,  civil  and  public  employments,  and  the 
signal  ability  with  which  he  discharged  their  respective 
duties,  has  yet  little,  except  the  trial  of  Burr,  that  is 
striking  and  dramatic. 

And  now  the  inquiry  fitly  comes,  whether  this  venera 
tion  for  Marshall  is  a  mistaken  and  superstitious  idolatry 
or  whether  it  rests  upon  rational,  solid  and  enduring 
grounds.  And,  if  the  latter,  what  are  these  grounds  and 
what  is  the  just  measure  of  Marshall's  fame  and  of  our 
indebtedness  to  him.  To  this  inquiry  our  thoughts  will 
mainly  be  directed. 

The  purpose  of  this  occasion  being  to  commemorate 
the  judicial  services  of  Marshall,  this  determines  the  char 
acter  and  scope  of  the  present  address.  The  general  in 
cidents  of  Marshall's  life  belong  to  his  biography,  and 
will  be  referred  to  by  me  very  briefly,  and  only  because 
they  throw  light  upon  the  formation  and  character  of  the 
principles  which  he  afterwards  embodied  in  his  celebrated 
decisions  relating  to  the  constitutional  powers  of  the 
General  Government. 

Marshall,  as  I  have  already  said,  had  rendered  great 
public  services  before  he  went  upon  the  bench.  He  was 
for  years  a  soldier  of  the  Revolution.  He  was  engaged 
in  numerous  battles.  He  was  present  during  the  terrible 
winter  at  Yalley  Forge.  He  often  acted  as  judge-advo 
cate,  and  was  well  acquainted  with  Washington,  whose 


351  New  York  — Address  of  John  F.  Dillon. 

biographer  he  became,  and  with  Hamilton,  whose  talents 
he  admired  and  whose  political  principles  he  approved. 
He  was  a  self-made  man.  He  never  had  the  advantages 
of  a  regular  and  systematic  education.  He  was  graduated 
from  no  institution  of  learning.  His  professional  train 
ing  was  so  desultory  and  irregular  that  it  is  a  marvel  to 
this  day  how,  under  such  circumstances,  he  acquired  such 
a  thorough  knowledge  of  the  principles  of  his  profession. 
He  was  repeatedly  elected  to  the  Legislature  of  his  State 
in  the  critical  period  of  our  history  between  1782  and 
1T92,  not  because  he  desired  it,  but  because  he  was  too 
patriotic  to  refuse.  He  had  seen  the  fatal  defects  and 
the  pitiable  failure  of  the  Articles  of  Confederation,  and 
the  bankruptcy  of  the  new  government  and  the  public 
and  private  distress.  Anarchy  and  chaos  stared  the  peo 
ple  in  the  face,  and  Marshall  was  fully  convinced  that 
nothing  but  a  firmer  Union  could  save  the  country.  Under 
the  Confederation  no  remedy  was  possible. 

When  the  adoption  of  the  Constitution  hung  trembling 
in  the  balance,  he  Jbecame,  in  1T88,  at  the  age  of  thirty- 
three,  a  member  of  the  Virginia  Convention  called  to 
adopt  or  reject  the  Constitution,  and,  with  Pendleton, 
Madison  and  Eandolph,  championed  its  ratification 
against  Patrick  Henry,  George  Mason  and  William  Gray- 
son.  The  history  of  that  struggle  has  been  made  familiar 
to  lawyers  by  the  glowing  and  pictured  pages  of  Wirt's 
Henry,  and  to  the  world  by  Bancroft,  Fiske  and  other 
historians.  Madison  was  the  acknowledged  chief,  but 
Marshall  took  a  leading  part,  and  some  of  his  speeches 
which  have  been  preserved  are  strongly  marked  by  the 
same  intellectual  qualities  for  which  he  was  afterwards 
so  distinguished.  The  contest  raged  for  more  than  three 
weeks,  and  in  the  end  the  vote,  June  25,  1788,  in  favor 


John  Marshall  Memorial.  352 

of  the  Constitution  was  carried  by  the  narrow  majority 
of  only  ten,  eighty-nine  against  seventy-nine,  and  even 
this  was  delayed  until  nine  out  of  the  thirteen  States  (the 
requisite  number  to  establish  the  Constitution  between 
the  States  ratifying  the  same)  had  assented  to  it. 

In  New  York  the  Constitution  was  in  greater  peril. 
New  York  was  more  tardy  than  Yirginia.  Hamilton 
saved  the  day,  and  the  Constitution  was  ratified  at  Pough- 
keepsie,  July  twenty-sixth,  by  a  majority  of  but  three 
votes,  thirty  to  twenty-seven.  If  any  historical  fact  is 
certain,  it  is  that  this  result  saved  the  Union,  for  the 
Northern  and  Southern  assenting  States  could  not  have 
existed  separated  by  the  State  of  New  York;  and  New 
York's  assent  to  the  Union  is  due  to  the  genius,  writings 
and  labors  of  Hamilton. 

For  the  five  years  succeeding  1792  Marshall  was  in  full 
practice  at  the  Bar  and  went  to  the  head.  He  warmly 
advocated  Jay's  treaty,  unpopular  as  it  was  in  Yirginia. 
He  supported  the  government  in  its  controversy  with 
France.  In  1797  he  accepted  a  JQint  mission  to  that 
country,  serving  with  Cotesworth  Pinckney  and  Elbridge 
Gerry.  He  had  a  year's  experience  with  the  almost  in 
credible  sinuosities,  duplicities  and  insolences  of  Talley 
rand's  diplomacy,  and  his  services,  as  Adams  declared, 
"  were  entirely  satisfactory  and  ought  to  be  marked  with 
the  most  decided  approbation  of  the  public."  And  they 
were. 

He  declined  a  seat  on  the  Supreme  Bench  in  order,  at 
Washington's  request,  to  serve  his  country  in  Congress. 
War  with  France  being  then  imminent,  Washington  had 
been  unanimously  appointed,  July  3,  1798,  Lieutenant- 
General  and  Commander-in-Chief  of  the  armies  raised 
and  to  be  raised  in  the  United  States.  Marshall's  first 
service  in  Congress  was  the  mournful  one  of  announcing 


353  New  York  — Address  of  John  F.  Dillon. 

the  death  of  "Washington.  lie  defended  the  rightfulness 
of  the  surrender  of  JSTash  by  the  President  in  a  speech  so 
conclusively  reasoned  that  it  was  unanswerable.  Adams 
appointed  him  Secretary  of  State,  and  he  was  exercising 
the  important,  and  at  that  juncture  extremely  delicate, 
duties  of  this  office  January  31,  1801,  when  he  was  com 
missioned,  at  the  age  of  forty-five,  to  be  Chief  Justice  of 
the  Supreme  Court. 

I  have  given  this  outline  sketch  of  Marshall  to  show 
whence  his  political  opinions  were  formed,  and  that  his 
whole  life,  public  and  professional,  was  a  preparation  for 
the  greater  and  more  difficult  duties  and  responsibilities 
of  the  judicial  career  on  which  he  was  about  to  enter. 
On  this  point  we  have  his  own  interesting  statement. 
Years  afterwards  he  said:  "I  ascribe  my  devotion  to  the 
Union  and  to  a  government  competent  to  its  preserva 
tion  to  sentiments  which  I  imbibed  when  in  the  army 
so  thoroughly  that  they  constituted  a  part  of  my  being." 
"My  legislative  experience  gave  a  high  value  to  that 
article  in  the  Constitution  which  imposes  restrictions  on 
the  States.  I  was  consequently  a  determined  advocate 
for  its  adoption.  ...  I  was  convinced  that  no  safe 
or  permanent  remedy  could  be  found  but  in  a  more  effi 
cient  and  better  organized  general  government." 

This  tells  the  whole  story.  It  might  stand  as  a  sylla 
bus  to  all  of  his  great  constitutional  judgments. 

That  during  Marshall's  chief  justiceship  he  was  the 
leader  of  the  bench,  and  that  his  dominating  intellect 
carried  the  other  judges  with  him,  is  the  general  and  pop 
ular  belief,  and  it  is  one  which  is  well  founded.1 

i  Hitchcock,  Const.  Hist  of  U.  S.,  p.  57;  table  of  cases,  Ibid.,  pp.  118- 
120;  Carson,  Hist.  Sup.  Court,  p.  286. 
VOL.  I  — 23 


John  Marshall  Memorial.  354 

The  Chief  Justice  had  the  good  fortune  to  have,  on  the 
whole,  able  associates,  some  of  them  very  eminent.  But 
he  was  the  planetary  center  of  the  court,  holding  every 
orb  in  place,  giving,  and  in  turn  receiving  back,  "  the 
gladsome  light "  which  has  made  that  tribunal  so  re 
splendent.  Mr.  Justice  Story  sat  at  Marshall's  side  for 
twenty-four  years.  No  one  had  better  opportunities  of 
knowing  Marshall's  relation  to  the  labors  of  the  court 
than  Story,  and  no  one,  certainly,  was  capable  of  form 
ing  a  juster  estimate  of  them.  When  such  a  lawyer  and 
judge  as  Story  looks  up  to  Marshall  and  publicly  salutes 
him  as  master,  no  more  impressive  proof  is  possible  of 
Marshall's  intellectual  greatness  and  supremacy. 

To  appreciate  Marshall  justly  we  must  view  him  against 
the  sombre  background  of  an  untried  and  most  difficult 
situation.  The  controversies  which  the  progress  of  the 
formation  and  adoption  of  the  Constitution  had  made 
manifest,  survived  and  took  on  a  partisan  form.  A  writ 
ten  constitution  as  an  organic  law  for  a  government  of 
novel  and  complex  construction,  whose  powers  and  lim 
itations  were  expressed  in  the  most  general  language,  re 
quired  to  be  interpreted,  expounded  and  applied  for  the 
first  time.  For  a  situation  so  absolutely  unique,  prece 
dents  and  authorities  there  were  none.  The  usual  and 
most  useful  function  of  a  judge  is,  by  careful  study,  to 
ascertain  from  the  sages  of  his  profession,  and  from  the 
opinions  and  judgments  of  the  courts,  what  the  law  is, 
and  to  declare  and  apply  it  faithfully  and  without  inno 
vation  to  the  case  in  hand.  He  has  the  accumulated  and 
recorded  wisdom  of  ages  as  an  unfailing  and  sacred  de 
posit  from  which  to  draw  the  principles  which  are  to 
guide  his  inquiries,  enlighten  his  understanding  and  de- 


355  New  York— Address  of  John  F.  Dillon. 

termine  his  judgment.  But  no  such  resource  was  open 
to  Marshall  in  the  decision  of  the  new  questions  of  Fed 
eral  authority  and  right  arising  under  the  Constitution 
of  the  United  States,  and  he  was,  from  necessity,  thrown 
back  almost  wholly  upon  his  own  native  powers.1 

Men  of  our  profession  are  apt  to  distrust  generalities 
and  to  demand  specifications  and  proofs.  Appreciating 
that  with  them  specific  and  concrete  examples  are  more 
effective  than  general  unsupported  statements,  I  have, 
with  some  hesitation,  lest  I  should  drift  into  too  much 
detail  and  prolixity,  concluded  that  the  nature  and  value 
of  Marshall's  judicial  services  can  only  be  satisfactorily 
shown  by  selecting  and  briefly  stating  a  few  of  his  lead 
ing  judgments  which  determined  the  boundaries  and  es 
tablished  the  vital  and  fundamental  principles  of  our 
Constitution. 

This  was  his  distinctive  work.  On  this  his  fame  chiefly 
rests.  Before  Agamemnon  there  were  many  heroes. 
There  are  in  English  and  American  jurisprudence  many 
great  judges.  Aside  from  Marshall's  services  as  the  main 
creator  of  Federal  constitutional  law  there  are  English 
and  American  judges,  not  a  few,  who  have  as  wide  or  a 
wider  fame  than  Marshall.  I  may  mention  among  his 
contemporaries  in  this  country  Story,  Shaw  and  Kent. 

Having  mentioned  Chancellor  Kent,  perhaps  you  will 
give  me  leave,  in  this  capital  city  and  before  the  Bar  of 
his  State,  to  repeat  what  I  have  elsewhere  said  concern 
ing  him.  It  is  not  inappropriate  to  this  occasion.  "As 
a  judge  and  author,  he  will  not  suffer  when  compared 
with  the  greatest  names  which  have  adorned  the  English 
law.  .  ...  .  The  American  Bar  and  people  venerate 

1 112  United  States  Reports,  745,  per  Waite,  C.  J.    [See  post,  Vol. 
Ill,  402.] 


John  Marshall  Memorial.  356 

his  name  and  character.  Simple  as  a  child  in  his  tastes 
and  habits  throughout  his  tranquil  and  useful  life;  more 
than  any  other  judge  the  creator  of  the  equity  s}7stem  of 
this  country;  the  author  of  Commentaries  which,  in  ac 
curacy  and  learning,  in  elegance,  purity  and  vigor  of 
;tyle,  rival  those  of  Sir  William  Blackstone,  his  name  is 
admired,  his  writings  prized,  and  his  judgments  at  law 
and  in  equity  respected  in  every  quarter  of  the  globe 
wherever,  in  its  widening  conquest,  the  English  language 
has  carried  the  English  law."  *  No  writer  has  considered 
the  respective  powers  and  duties  of  the  Federal  and  State 
judiciaries  so  satisfactorily  as  Chancellor  Kent,  whose 
chapters  on  that  subject  are  characterized  by  precision, 
justness  and  elegance.  Although  his  judicial  labors  were 
mainly  confined  to  objects  of  local  jurisdiction,  yet  he 
pointed  out  that  there  was  enough  in  them  to  cheer  and 
animate  the  cultivation  of  the  jurisprudence  of  the  States, 
saying :  "  The  vast  field  of  the  law  of  property,  the  very 
extensive  head  of  equity  jurisdiction,  and  the  principal 
rights  and  duties  which  flow  from  our  civil  and  domestic 
relations,  fall  within  the  control,  and,  we  might  almost 
say,  the  exclusive  cognizance  of  the  State  governments. 
We  look  essentially  to  the  State  courts  for  protection  to 
all  these  momentous  interests.  They  touch,  in  their 
operation,  every  chord  of  human  sympathy,  and  control 
our  best  destinies." 

Such  is  the  general  regard  for  him,  as  man,  judge  and 
author,  that  it  will,  I  am  sure,  be  permitted  on  this  occa 
sion  to  suggest  that  at  some  suitable  time,  under  the 
auspices  of  the  Bar  Associations,  we  shall  have  a  James 
Kent  Day,  in  order  that  we  may  suitably  make  manifest 
our  appreciation  of  the  great  services  which  he  rendered 

1  Laws  and  Jurisprudence  of  England  and  America,  p.  379. 


357  New  York  — Address  of  John  F.  Dillon. 

to  general  jurisprudence,  and  particularly  to  the  juris 
prudence  of  the  State  of  New  York,  and  this  in  the  hope 
that  it  may  result  in  the  erection  of  a  statue,  in  honor  of 
his  memory,  either  here  in  the  capital  city,  where  he 
labored  so  long,  or  in  the  city  of  New  York,  where  he 
died.  I  cannot  doubt  that  if  application  were  made  to 
the  Legislature,  it  would  lend  its  powerful  sanction  and 
authorize  the  Governor  and  Chief  Judge  of  the  Court  of 
Appeals  to  select  a  suitable  site  on  the  Capitol  grounds, 
which,  if  done,  I  am  sure  the  Bar  and  the  people  of  New 
York  will  furnish  the  means  to  place  thereon  a  memorial 
worthy  of  the  State,  worthy  of  our  profession  and  worthy 
of  this  distinguished  jurist  and  judge.  If  I  may  be  par 
doned  for  venturing  to  express  any  mere  personal  feel 
ings,  I  will  add  that  I  have  often  wished  that  my  own 
life  might  be  prolonged  to  see  Chancellor  Kent  thus  ap 
propriately  commemorated. 

Unlike  Kent,  Marshall  does  not  owe  the  eminence  and 
renown  which  inspire  the  public  honors  of  this  day  to 
services  in  the  field  of  general  jurisprudence,  although 
these  were  great,  but  to  his  judicial  work  as  the  first  and 
greatest  expounder  of  the  principles  of  the  Federal  Con 
stitution.  It  has  not  been  easy  for  me  to  find  any  single 
term  which  precisely  and  fully  describes  the  labors  of 
Marshall  in  this  respect.  He  was  indeed  an  expounder 
of  the  Constitution.  But  he  was  much  more  than  a  mere 
expounder.  Mr.  Webster,  in  his  day,  was  called,  and  not 
unjustly,  the  great  expounder  of  the  Constitution. 

In  our  jurisprudence,  as  Marshall  left  it,  our  Constitu 
tion  means  what  the  judicial  department  holds  that  it 
means.  Marshall,  in  the  course  of  his  long  service  as 
Chief  Justice,  construed  and  expounded  for  the  first  time 
nearly  all  the  leading  provisions  of  the  Constitution,  and 


John  Marshall  Memorial.  358 

in  this  he  performed  an  original  work  of  the  most  tran 
scendent  importance,  and  one  which  it  is  the  universal 
conviction  no  one  else  could  have  performed  as  well. 
But  the  work,  after  all,  was  that  of  a  judge  as  distin 
guished  from  that  of  the  statesman,  since  he  was  confined 
to  the  written  text  of  the  Constitution.  It  was  the  su 
preme  work  of  Marshall  that  carried  our  Constitution 
successfully  through  its  early  and  perilous  stages  and 
settled  it  on  its  present  firm  and  immovable  foundations. 

Marshall  had  the  good  fortune,  common  to  other  judges, 
"  to  connect  his  reputation  with  the  honor  and  interests 
of  a  perpetual  body  of  men."  But  in  addition  he  had 
the  golden  opportunity,  which  he  promptly  took  by  the 
hand,  the  singular,  the  solitary  felicity,  of  connecting  his 
name  and  fame  imperishably  with  the  origin,  develop 
ment  and  establishment;  of  constitutional  law  and  liberty 
in  the  great  American  Republic.  He  is,  therefore,  enti 
tled  to  be  regarded  as  something  more  than  a  mere  com 
mentator.  He  is,  more  than  any  other  man,  entitled  to 
be  called  the  creator  of  our  Federal  constitutional  juris 
prudence. 

I  proceed  to  make  good  this  proposition,  so  far  as  the 
limits  of  this  occasion  will  permit,  by  a  reference  to  some 
of  his  great  constitutional  judgments,  albeit  they  are  in 
their  general  features  so  familiar. 

The  court,  at  the  very  next  term  after  Marshall's  ap 
pointment,  was  required  to  consider  a  case  which  lies  at 
the  foundation  of  American  constitutional  law.  The 
circumstances  out  of  which  it  arose  invested  it  with  a 
popular  as  well  as  a  legal  interest.  Briefly  stated,  they 
were  these:  Towards  the  expiration  of  Mr.  Adams'  term 
as  President  he  appointed  a  number  of  justices  of  the 


359  New  York— Address  of  John  F.  Dillon. 

peace  for  the  District  of  Columbia,  which  the  Senate  con 
firmed.  Commissions  to  these  officers,  among  them  Mr. 
Marbury,  had  been  made  out,  signed  by  the  President  as 
the  Constitution  requires,  sealed  with  the  seal  of  the 
United  States,  and  were  ready  for  delivery,  but  remained 
undelivered  in  the  office  of  the  Secretary  of  State  at  the 
time  Jefferson  became  President.  The  office  was  not  one 
to  which  the  President's  power  of  removal  extended. 
Mr.  Jefferson's  opinion  was  that  the  appointment  was 
incomplete  until  consummated  by  delivery  of  the  com 
mission,  and  he  forbade  Mr.  Madison,  who  was  his  Sec 
retary  of  State,  to  deliver  the  commission  to  Marbury.1 
Marbury  contended  that,  having  been  appointed  by  the 
President,  confirmed  by  the  Senate,  and  his  commission 
signed  and  sealed,  the  appointment  was  complete  and 
vested  in  him  a  legal  right  to  the  office,  and  that  it  was 
a  violation  of  his  right  to  withhold  the  commission.  Act 
ing  upon  this  theory  Marbury  applied,  at  the  December 
term,  1801,  of  the  Supreme  Court,  for  a  mandamus  to 
Madison  commanding  him  to  deliver  the  commission. 

The  opinion  finally  delivered  in  this  case  is  one  of  the 
most  important  of  Marshall's  great  judgments.  It  was 
concurred  in  by  the  whole  court,  and  laid  down  the  fol 
lowing  propositions: 

1.  That  the  appointment  was  complete  and  vested  in 
Marbury  a  legal  right  to  the  office,  and  that  to  withhold 
the  commission  violated  his  legal  right. 

This  proposition  is  not  one  of  constitutional  law,  and 
I  will  not  further  notice  it,  except  to  say  that  its  prin 
ciple  was  regarded  as  sound  by  the  Supreme  Court  more 
than  seventy-five  years  afterwards  in  a  case  against  Sec 
retary  Schurz,  decided  in  1880. 

1  Jefferson's  Writings  (Ford),  VoL  X,  p.  230. 


John  Marshall  Memorial.  360 

2.  That  mandamus  was  an  appropriate  legal  remedy 
to  enforce  the  delivery  of  such  a  commission,  and  that 
the  writ  might  issue  from  a  court  of  competent  jurisdic 
tion  against  the  Secretary  of  State,  commanding  him  to 
deliver  it.  ... 

It  is  readily  perceived  that  this  was  a  question  of  far- 
reaching  and  permanent  importance,  since  it  necessarily 
involved  a  determination  of  the  extent  and  limits,  re 
spectively,  of  the  executive  and  judicial  power.  The  ques 
tion  was  novel.  It  had  never  before  arisen  in  the  Su 
preme  Court  and  was  of  a  nature  which  could  not  arise 
in  any  other  country.  It  was  deliberately  considered  and 
the  court  asserted  the  principle  that  public  officers  of  the 
United  States  may  be  judicially  compelled  to  perform 
any  plain,  specific,  legal  duty  not  political  or  discretion 
ary  in  its  character.  Referring  to  Marbury's  case,  one  of 
the  greatest  of  constitutional  judges  in  this  country,  the 
late  Mr.  Justice  Miller,  declared  that  "the  immense  im 
portance  of  this  decision  [Marbury  v.  Madison],  though  in 
some  respects  obiter,  since  the  court  declared  in  the  end 
that  they  had  no  jurisdiction  of  the  case,  may  be  appre 
ciated  when  it  is  understood  that  the  principles  declared, 
which  have  never  since  been  controverted,  subjected  the 
ministerial  and  executive  officers  of  the  government  all 
over  the  country  to  the  control  of  the  courts  in  regard  to 
the  execution  of  a  large  part  of  their  duties,  and  whose 
application  to  the  very  highest  officers  of  the  govern 
ment,  except,  perhaps,  the  President,  has  been  illustrated 
in  numerous  cases  in  the  courts  of  the  United  States.  In 
fact,"  he  says,  "its  assertion  or  denial  makes  just  the  dif 
ference,  as  Marshall  tersely  said  in  that  opinion,  between 
1  a  government  of-  laws  and  a  government  of  men.'  " * 

1  Historical  Address  upon  the  Supreme  Court,  Philadelphia,  1889; 
Miller  on  the  Constitution,  p.  386. 


361  New  York— Address  of  John  F.  Dillon. 

That  is  to  say,  if  this  is  a  government  of  laws,  then  the 
officers  of  the  law  must  obey  the  law,  and  Marbury  was 
entitled  to  the  delivery  of  his  commission.  If  it  is  a  gov 
ernment  of  men,  as  distinguished  from  laws,  it  means 
that  Marbury's  legal  rights  might  be  conclusively  decided 
by  officers  other  than  the  judges  and  that  they  may  be 
disregarded  by  such  officers  with  impunity.  It  is  proper, 
however,  to  remark  that  the  expression  that  this  is  "  a 
government  of  laws  and  not  a  government  of  men,"  was 
not  original  with  Marshall,  nor  did  it  profess  to  be.  Pub 
lic  men  and  statesmen  of  that  day  throughout  the  colo 
nies  were  profound  students  of  political  principles,  and 
this  precise  expression  I  have  found  in  the  Constitution 
of  the  State  of  Massachusetts,  adopted  in  1YS0.1  Perhaps 
the  diligent  inquirer  might  trace  its  origin  further  back 
or  elsewhere.2  As  we  shall  presently  see,  the  power  here 
asserted  to  issue  process  to  an  executive  officer  was  vio 
lently  controverted  by  Mr.  Jefferson  as  long  as  he  lived, 
and  he  always  insisted  that  the  decision  on  this  point 
was  not  only  not  law,  but  that  the  opinion  thereon  was 
extra-judicial. 

3.  The  case  also  decided  for  the  first  time  in  the  Su 
preme  Court  of  the  United  States  that  an  act  of  Congress 
repugnant  to  the  Constitution  is  void  —  observe,  not 
voidable,  but  void  —  and  that  it  is  not  only  within  the 
power,  but  it  is  also  the  duty,  of  the  judicial  department 
so  to  decide  in  any  case  properly  before  it  involving  the 
question.  It  is  this  point  affirming  the  power  and  duty  of 
the  court  to  adjudge  laws  in  conflict  with  the  Constitution 
to  be  void  that  gives  to  that  opinion,  which  has  become 

1  Part  the  First,  Article  XXX. 

2  See  Harrington,  Oceana  (3d  ed.),  386;  Thayer,  Cases  on  Constitu 
tional  Law,  VoL  1,  p.  884. 


John  Marshall  Memorial.  362 

the  corner-stone  of  the  constitutional  law  of  this  country, 
its  vital  and  transcendent  importance.  Thus,  Parsons 
says : 

"  I  should  not  do  justice  to  my  own  deliberate  belief 
did  I  not  say  that  I  think  this  decision  is  not  surpassed 
in  the  ability  it  displays,  nor  equaled  in  its  utility,  by  any 
case  in  the  multitudinous  records  of  English  or  American 
jurisprudence."1 

Chancellor  Kent's  observations  are  not  the  less  strik 
ing.  He  says: 

"This  great  question  may  be  regarded  as  now  finally 
settled,  and  I  consider  it  to  be  one  of  the  most  interesting 
points  in  favor  of  constitutional  liberty  and  of  the  secu 
rity  of  property  in  this  country  that  has  ever  been  judi 
cially  determined.  In  Marbury  against  Madison  this 
subject  was  brought  under  the  consideration  of  the  Su 
preme  Court  of  the  United  States  and  received  a  clear 
and  elaborate  discussion.  The  power  and  duty  of  the 
judiciary  to  disregard  an  unconstitutional  act  of  Congress, 
or  of  any  State  Legislature,  were  declared  in  an  argument 
approaching  to  the  precision  and  certainty  of  a  mathe 
matical  demonstration."2 

More  impressive  and  emphatic  still  is  the  utterance  of 
one  of  the  most  eloquent  and  able  lawyers  of  the  Amer 
ican  Bar: 

"I  do  not  know,"  said  Eufus  Choate, "  that  I  can  point 
to  one  achievement  in  American  statesmanship  which 
can  take  rank  for  its  consequences  of  good  above  that 
single  decision  of  the  Supreme  Court  which  adjudged 
that  an  act  of  the  Legislature  contrary  to  the  Constitu 
tion  is  void,  and  that  the  judicial  department  is  clothed 

1  American  Law  Review,  1865,  p.  433,  "John  Marshall" 

2  Kent's  Corum.,  VoL  I,  pp.  453,  454. 


363  New  York  — Address  of  John  F.  Dillon. 

with  the  power  to  ascertain  the  repugnancy  and  pro 
nounce  the  legal  conclusion.  That  the  framers  of  the 
Constitution  intended  this  to  be  so  is  certain ;  but  to  have 
asserted  it  against  Congress  and  the  Executive,  to  have 
vindicated  it  by  that  easy  yet  adamantine  demonstration 
than  which  the  reasonings  of  mathematics  show  nothing 
surer,  to  have  inscribed  this  vast  truth  of  conservatism 
upon  the  public  mind,  so  that  no  demagogue  not  in  the 
last  stages  of  intoxication  denies  it  —  this  is  an  achieve 
ment  of  statesmanship  [of, the  judiciary]  of  which  a 
thousand  years  may  not  exhaust  or  reveal  all  the  good." 
It  has  sometimes  been  claimed  that  Marshall's  opinion 
on  this  point,  as  well  as  on  the  others,  was  olriter.  In  my 
judgment  it  admits  of  debate  whether  the  decision  is  obi 
ter  on  either  of  the  two  propositions  first-above  mentioned ; 
but  as  respects  the  power  and  duty  of  the  courts  to  de 
clare  a  legislative  act  in  conflict  with  the  Constitution  to 
be  void,  the  record  clearly  presented  the  question  for  de 
cision,  and  the  judgment  and  opinion  of  the  court  thereon 
were  in  no  respect  extra-judicial.  This  may  readily  be 
shown.  The  Constitution  denied  to  the  Supreme  Court 
the  pOAver  to  issue,  as  an  exercise  of  original  jurisdiction, 
writs  of  mandamus.  The  Judiciary  Act,  on  the  contrary, 
provided,  in  effect,  that  the  Supreme  Court  might  issue 
original  writs  of  mandamus  to  persons  holding  office  under 
the  authority  of  the  United  States;  that  is  to  say,  the  act 
of  Congress  in  this  respect  conflicted  with  the  Constitu 
tion  by  attempting  to  confer  a  jurisdiction  upon  the 
Supreme  Court  which  the  Constitution  had  withheld. 
The  court  was,  therefore,  necessarily  obliged  to  determine 
which  controlled  —  if  the  Constitution  controlled,  and  if 
it  belonged  to  the  court  to  declare  an  act  of  the  Congress 
void,  the  writ  must  be  denied;  but,  if  the  act  of  Congress 


John  Marshall  Memorial.  364 

controlled,  Marbury,  having,  as  Marshall  had  shown,  a 
legal  right,  was  entitled  to  the  writ. 

I  shall  not,  of  course,  undertake,  nor  is  it  necessary,  to 
follow  the  reasoning  of  the  Chief  Justice  sustaining  the 
conclusion  reached.  Its  essential  ground  was  that  in  this 
country  the  Constitution  is  the  supreme  law;  that  by  the 
Constitution  the  people  limited  the  power  of  each  depart 
ment  of  government;  that  the  Constitution  fixes  these 
limits,  and  in  order  that  they  may  not  be  mistaken  or 
forgotten  the  Constitution  is  cast  in  a  written  form.  In 
any  case  properly  brought  before  the  judicial  department 
it  is  the  duty  of  that  department  to  say  what  is  the  law 
that  governs.  If  the  terms  of  the  Constitution  and  of  the 
legislative  act  both  apply  to  the  case,  and  these  conflict, 
the  court  necessarily  has  to  decide  whether  it  will  follow 
the  Constitution  or  the  legislative  act.  The  conclusion 
of  the  court  was  expressed  in  language  which  constitutes 
the  foundation  of  American  constitutional  law,  namely: 

"  It  is  essential  to  all  written  constitutions  that  a  law 
repugnant  to  the  Constitution  is  void,  and  that  the  courts, 
as  well  as  the  other  departments,  are  bound  by  that  instru 
ment." 

That  is  to  say,  the  Federal  Constitution  is  the  supreme 
law,  binding  not  only  upon  the  people,  but  upon  every 
department  of  the  government,  and  the  Supreme  Court 
is  its  accredited  and  lawful  expositor. 

Two  propositions  were  here  affirmed,  namely,  that  a 
statute  in  conflict  with  the  Constitution  was  void,  and  also 
that  it  is  within  the  power  of  the  judiciary  so  to  determine. 

Bound  up  in  the  decision  of  this  cause  were  the  essen 
tial  elements  of  all  that  is  distinctive  in  American  gov 
ernmental  institutions.  It  is  the  American  theory  that 
all  power  proceeds  from  the  people;  that  ours  is  a  govern- 


365  New  York  — Address  of  John  F.  Dillon. 

merit,  as  Mr.  Lincoln  on  a  memorable  occasion  expressed 
it,  "of  the  people,  by  the  people,  and  for  the  people;" 
that  in  establishing  governments  the  people  limit  every 
department  of  governmental  power;  that  these  limits  are 
prescribed  in  the  Constitution  to  the  end  that  they  shall 
not  be  overpassed  or  disregarded.  In  short,  that  it  is  a 
government  of  law,  not  only  for  the  people  subjected  to 
its  authority,  but  for  the  officers  who,  for  the  time  being, 
are  charged  with  the  administration  of  its  affairs.  It  was 
a  novel  conception  and  device  when  it  was  established, 
and  practically  it  has  remained  unique  to  this  day.  Its 
successful  working  for  more  than  a  century  has  attracted 
the  observation  and  praise  of  foreign  statesmen  and  pub 
licists.  Thus,  Dicey  says: 

"This  American  system  which  makes  the  judges  the 
guardians  of  the  Constitution,  provides  the  only  adequate 
safeguard  which  has  hitherto  been  invented  against  un 
constitutional  legislation.  .  .  .  The  glory  of  the  found 
ers  of  the  United  States  is  to  have  devised  or  adopted 
arrangements  under  which  the  Constitution  became,  in 
reality  as  well  as  in  name,  the  supreme  law  of  the  land." 1 

In  this  America  has  given  to  the  world  the  truest,  it  is 
not  extravagant  to  say,  the  most  sublime  conception  of 
law  that  has  ever  existed.  Let  me  make  this  plain.  In 
other  countries  law  is  regarded  as  something  that  pro 
ceeds  from  the  State,  considered  as  sovereign,  and  there 
fore  is  binding  alone  upon  the  subject.  This  conception 
is  defective  in  that  it  fails  to  realize  that  law  has  not 
reached  its  full  development  until  it  attains  a  complete 
supremacy  by  binding  alike  the  State  and  the  citizen  or 
subject.  This  great  conception  has  only  been  made  a 

1  Dicey,  The  Law  of  the  Constitution,  2d  ed.,  London,  1886,  Lecture 
iv,  p.  145. 


John  Marshall  Memorial.  366 

reality  by  the  American  device  of  written  constitutions, 
which  are  the  supreme  law  of  the  land,  since  their  pro 
visions  are  obligatory  upon  rulers  and  those  subjected  to 
their  rule,  and  equally  enforceable  against  both  in  all  ju 
dicial  controversies,  and,  therefore,  law  in  the  fullest  and 
strictest  sense  of  the  term.  All  these  conceptions  which 
lie  at  the  very  foundation  of  our  political  institutions 
were  decided  in  the  case  of  Marbury  against  Madison, 
and  are  now  an  unquestioned  part  of  the  constitutional 
jurisprudence  of  this  country. 

This  reference  to  the  Marbury  case  would  be  historic 
ally  incomplete  without  some  notice  of  the  manner  in 
which  the  decision  was  received. 

Marshall  belonged  to  one  political  school,  and  Jefferson 
was  the  leader  of  the  other.  There  were  at  that  time 
reasonable  grounds  for  the  conflicting  opinions.  Marshall 
was  penetrated  by  the  sentiment  and  spirit  of  nationality, 
and  believed  that  the  Constitution,  properly  construed, 
conferred  upon  the  Union  all  the  essential  powers  of 
national  sovereigntj7'.  Jefferson  believed  that  powers  in 
the  central  government  in  such  amplitude  as  Marshall 
held  them  to  exist  were  dangerous  to  the  existence  of  the 
States  and  to  the  liberties  of  the  people.  He  regarded 
Marshall's  views  with  sincere  alarm,  and  considered  it  a 
patriotic  duty  to  resist  and  oppose  them  in  every  possible 
way.  For  this  he  should  not  be  blamed,  nor  does  it 
diminish  our  sentiments  of  respect  and  gratitude  for  his 
great  public  services.  He  will  go  down  to  posterity 
proudly  holding  in  his  hands  the  Declaration  of  Inde 
pendence,  and  Marshall  will  go  down  holding  in  his  the 
Federal  Constitution.  I  am  not  unmindful  of  the  strength 
of  party  names  and  traditions,  and  know  how  deeply  the 


367  New  York  — Address  of  John  F.  Dillon. 

memory  of  Jefferson  is  still  reverenced  by  our  country 
men,  but  I  am  incapable,  I  trust,  at  any  time,  and  espe 
cially  at  this  time,  of  saying  a  word  that  could  give  the 
least  offense  to  anyone  who  hears  me.  I  make  these  ob 
servations  because  I  realize  full  well  that  "  e'ea  in  our 
ashes  live  their  wonted  fires,"  and  in  proceeding  to  state 
how  Jefferson  regarded  the  doctrines  of  Marbury 's  case, 
I  wish  it  distinctly  to  appear  that  it  is  not  done  in  any 
spirit  of  unfriendliness  towards  the  memory  of  that  dis 
tinguished  man. 

The  fundamental  article  of  Jefferson's  creed  was  faith 
in  the  people,  an  assertion  of  their  right  to  decide  all 
matters  pertaining  to  their  welfare,  and  a  firm  conviction 
that  their  deliberate  decision  could  be  trusted;  and  the 
practical  result  of  our  national  experience  of  more 
than  one  hundred  years  has  justified  Jefferson's  faith  in 
American  popular  government.  As  the  champion  of  this 
principle  Jefferson's  triumph  has  been  as  great  as  the 
triumph  of  Marshall  as  the  judicial  expositor  of  the  prin 
ciple  of  nationality  in  the  Federal  Constitution. 

During  the  trial  of  Burr  for  treason,  Jefferson  wrote 
to  United  States  District  Attorney  Hay,  June  2, 180T: 

"  I  observe  that  the  case  of  Marbury  v.  Madison  has 
been  cited  in  the  Burr  case,  and  I  think  it  material  to 
stop  at  the  threshold  the  citing  that  case  as  authority, 
and  to  have  it  denied  to  be  law.  ...  I  have  long 
wished  for  a  proper  occasion  to  have  the  gratuitous  opin 
ion  in  Marbury  v.  Madison  brought  before  the  public  and 
denounced  as  not  law;  and  I  think  the  present  a  fortunate 
one,  because  the  case  occupies  such  a  place  in  the  public 
attention.  I  should  be  glad,  therefore,  if,  in  noticing  that 
case,  you  could  take  occasion  to  express  the  determination 
of  the  executive  that  the  doctrines  of  that  case  were  given 


John  Marshall  Memorial.  368 

extra-judicially,  and  against  la\v,  and  that  their  reverse 
will  be  the  rule  of  action  with  the  executive."  * 

Jefferson  reiterated  these  views  in  his  old  age.  In  a 
letter  to  Justice  Johnson,  June  12,  1823,  he  criticises  the 
Marbury  case  at  length. 

"  No  veto  power,  ancient  or  modern,"  said  Jefferson 
on  another  occasion,  "  ever  existed  so  formidable  as  this 
American  irresponsible  judicial  veto  —  a  power  to  dis 
miss  laws  as  the  President  may  dismiss  officers  under 
him." 

In  further  illustration  of  the  value  and  lasting  influence 
of  Marshall's  constitutional  judgments,  I  next  refer  to 
the  case  of  Dartmouth  College,  1819,  perhaps  the  most 
celebrated  of  all  the  cases  decided  by  hini.  Important 
it  certainly  is,  but  I  do  not  consider  it  so  vital  to  the 
Union  as  some  other  decisions  of  Marshall.  In  this  as 
semblage  of  legislators,  judges  and  lawyers  it  cannot  be 
necessary  to  state  at  any  length  the  college  case,  even  if 
time  permitted.  It  involved  the  construction  of  the 
clause  of  the  Constitution  which  ordains:  "No  State 
shall  make  any  law  impairing  the  obligation  of  con 
tracts."  2  The  State  of  New  Hampshire  made  material 
changes  in  the  mode  of  government  of  this  institution  as 
established  in  its  charter,  changes  which  took  away  the 
control  of  the  college  from  the  charter  trustees  and  sub 
jected  it  to  the  control  of  officers,  a  majority  of  whom 
were  to  be  appointed  by  the  Executive  of  the  State. 
The  highest  court  of  New  Hampshire  sustained  this  leg 
islation.  Marshall,  with  the  concurrence  of  all  of  his  as 
sociates  but  one,  reversed  the  judgment  of  the  State 

1  Jefferson's  Writings  (Ford),  Vol.  IX,  p.  53,  note. 

2  Art.  I,  sec.  10. 


369  New  York  — Address  of  John  F.  Dillon. 

court  and  held  that  the  legislation  of  New  Hampshire 
was  in  conflict  with  the  clause  of  the  Constitution  which 
forbade  the  States  from  impairing  the  obligation  of  con 
tracts. 

No  one  ever  questioned  that  this  clause  applied  to  pri 
vate  contracts,  to  all  valid  private  contracts  between  indi 
viduals.  The  great,  the  peculiar  question  in  the  case  was : 
Does  it  apply  to  any  other  class  of  contracts  ?  Is  a  legis 
lative  charter  when  accepted  and  acted  on  by  the  grantee 
a  contract  between  the  State  and  the  corporation  as  to  the 
essential  franchises  and  rights  therein  granted  within  the 
meaning  of  the  clause  of  the  Federal  Constitution  above 
mentioned  ?  The  Supreme  Court  held  that  a  legislative 
charter  was  such  a  contract,  and  the  consequence  of  course 
followed  that  the  grant  was  irrevocable  and  could  not 
be  altered  without  the  consent  of  the  corporation,  unless 
the  power  to  do  so  was  reserved,  either  generally  or 
specially,  when  the  charter  was  granted. 

No  case  in  the  history  of  the  court  has  excited  more 
discussion  or  criticism  than  this  one.  .  The  principle  that 
there  may  be  a  legislative  contract  with  a  corporation 
that  falls  within  the  restraints  imposed  by  the  Federal 
Constitution  upon  the  power  of  a  State  to  impair  or  de 
stroy  has  been  often  reaffirmed  by  the  Supreme  Court, 
has  been  generally  acquiesced  in  by  the  State  courts,  and 
is  a  settled  principle  in  our  constitutional  jurisprudence. 
Its  application  in  the  later  judgments  of  the  Supreme 
Court  has  been  restricted  so  as  to  confine  it  to  cases 
where  there  is  a  plain  purpose  on  the  part  of  the  State 
founded  upon  a  sufficient  consideration  to  make  an  act 
ual  contract  which  the  parties  intend  shall  not  be  sub 
ject  to  future  conflicting  legislation  on  the  part  of  the 
State. 

Voi*I— 24 


John  Marshall  Memorial.  370 

I  may,  perhaps,  venture  to  add  that  while  in  my  judg 
ment  a  legislative  charter  to  a  private  corporation,  so- 
called,  as  distinguished  from  a  public  or  municipal  cor 
poration,  may,  within  the  meaning  of  the  Constitution, 
be  a  "  contract,"  still  the  precise  point  of  decision  in  the 
Dartmouth  College  case,  that  the  royal  charter  was  such  a 
contract,  I  cannot  but  regard  as  of  questionable  sound 
ness,  and  it  may  be  doubted,  in  the  light  of  subsequent 
decisions,  whether  if  it  were  presented  de  novo  to  the 
Supreme  Court  it  would  now  be  so  held. 

The  beneficent  effect  of  the  decision  in  this  case  con 
sists  in  the  sanctity  which  it  gave  to  all  contracts  by 
protecting  them  from  hostile  legislation.  This  principle 
has  been  uniformly  applied  by  the  Supreme  Court,  and 
innumerable  acts  of  State  legislation  in  conflict  with  it 
have  been  held  void,  and  dishonor  and  repudiation  pre 
vented.  The  doctrine  of  the  Dartmouth  College  case,  as 
applied  by  the  Supreme  Court  in  its  various  decisions,  is 
not  only  sound,  but  has  been  one  of  the  chief  causes  of 
our  individual  and  national  prosperity. 

In  further  illustration  of  the  permanent  value  and  effect 
of  Marshall's  constitutional  decisions  I  shall  next  refer  to 
what  was  at  the  time  known  as  the  Bank  case  (reported 
under  the  name  of  McCulloch  against  Maryland,  decided 
in  1819).  It  presented  questions  underlying  the  very  ex 
istence  of  the  government  of  the  Union.  Its  decision 
not  only  determined  the  conflicting  claims  of  the  General 
and  the  State  Government  on  points  of  great  moment, 
but  also  laid  down  the  true  principles  of  construction  by 
which  the  respective  limits  of  their  powers  are  ascer 
tained,  and  it  is,  moreover,  among  the  most  striking  ex 
amples  of  the  wisdom  of  the  framers  of  the  Constitution 


371  New  York  — Address  of  John  F.  Dillon. 

in  constituting  the  Supreme  Court  of  the  United  States 
the  tribunal  to  determine  finally  and  peacefully  compet 
ing  pretensions  of  the  States  and  the  General  Govern 
ment.  The  case  was,  in  fact,  a  controversy  between  the 
United  States  and  the  State  of  Maryland,  and  involved, 
on  the  one  hand,  the  constitutionality  of  an  act  of  Con 
gress,  and  on  the  other,  the  constitutionality  of  a  revenue 
statute  of  the  State. 

The  War  of  1812  was  followed  by  a  period  of  great 
financial  distress,  during  which  Congress  rechartered,  in 
1816,  the  Bank  of  the  United  States  as  a  fiscal  agency  of 
the  government.  The  act  was  approved  by  President 
Madison.  The  Constitution  contains  no  express  power 
to  charter  a  bank  or  to  create  any  corporation,  and  under 
the  principle  of  strict  construction  (that  no  power  exists 
unless  expressly  granted),  the  act  would  be  unconstitu 
tional,  and  such  was  the  contention  of  the  State  of  Mary 
land.  Branches  of  the  principal  bank  were  established  in 
several  States,  among  others,  in  1817,  in  Maryland,  and 
had  power  to  issue  notes  to  circulate  as  money.  The 
Legislature  of  Maryland,  the  next  year,  enacted  a  statute 
taxing  all  banks  or  branches  thereof  located  in  that  State 
not  chartered  by  its  legislature  by  requiring  that  notes 
issued  by  them  should  be  upon  stamped  paper  of  the 
State.  This  legislation  was  aimed  at  the  branch  bank 
and  was  probably  intended  to  tax  it  out  of  existence  in 
the  State  of  Maryland.  The  government  claimed  that 
this  act,  if  applied  to  the  branch  bank  in  Maryland, 
was  repugnant  to  the  Constitution  of  the  United  States, 
and  was,  therefore,  void.  The  branch  bank  having  re 
fused  to  pay  the  tax,  an  action  was  brought  to  recover 
the  amount  thereof  against  Mr.  M'Culloch,  its  cashier; 
and  this  was  the  case  which  was  finally  presented  for  the 


John  Marshall  Memorial  372 

decision  of  the  Supreme  Court  of  the  United  States,  to 
which  it  was  carried  from  the  judgment  of  the  Supreme 
Court  of  Maryland  in  favor  of  the  State  and  against  the 
bank. 

The  momentous  questions  which  lay  at  the  foot  of  this 
controversy  were  fully  appreciated  at  the  time.  The 
case  attracted  universal  attention.  Appreciating  that 
the  fundamental  principles  of  the  government  were  at 
stake,  the  opinion  of  the  Chief  Justice  is  one  of  the 
ablest  and  most  elaborately  reasoned  which  he  ever  pro 
nounced.  Concerning  the  bank,  the  court  held  that  it 
had  been  chartered  by  Congress  as  an  instrumentality  to 
carry  on  the  financial  operations  of  the  government,  and 
that  although  the  power  to  create  a  bank  for  such  pur 
pose  was  not  expressly  found  in  the  Constitution,  yet  it 
was  implied  in  the  great  powers  to  levy  and  collect  taxes, 
to  borrow  money,  to  regulate  commerce,  to  declare  and 
conduct  a  war,  and  to  raise  and  support  armies;  and  that 
these  powers  being  given,  Congress  had  the  right  to 
select  or  create  any  appropriate  means  to  facilitate  the 
execution  thereof. 

The  tests  by  which  to  determine  the  extent  of  the  im 
plied  powers  of  the  General  Government  as  laid  down  in 
this  opinion  are  not  now  questioned  or  denied.  After 
this  decision  the  question  as  to  creating  a  national  bank 
became  one  wholly  of  legislative  policy.  As  we  know, 
a  bill  for  that  purpose,  passed  by  Congress  in  1836,  was 
vetoed  by  President  Jackson  partly  on  the  ground  that 
it  was  unconstitutional.  This  presented,  of  course,  no 
question  for  judicial  review.  Many  years  afterwards, 
however  (1863),  the  existing  system  of  national  banks 
was  created  by  Congress,  to  the  great  benefit  of  the 
country,  and  at  this  day  no  one,  I  think,  seriously  doubts 


373  New  York— Address  of  John  F.  Dillon. 

the  power  of  Congress  to  enact  legislation  of  this  char 
acter. 

The  other  question  in  the  case  as  to  the  power  of  the 
State  to  tax  the  bank  is  in  its  principles  equally  impor 
tant.  The  claim  of  the  State  was  more  than  plausible;  it 
was  one  not  a  little  difficult  to  answer.  The  State  said, 
in  effect :  "  We  are  sovereign.  Taxation  of  all  persons 
and  property  within  our  limits  belongs  to  sovereignty; 
and  there  being  no  prohibition  in  the  Federal  Consti 
tution  against  the  exercise  of  this  vital  power  on  the 
part  of  the  State,  it  remains  in  all  its  amplitude  uncur- 
tailed  in  the  several  States." 

But  Marshall  held  that  this  claim  on  the  part  of  the 
State  was  fully  answered  by  the  principle  already  an 
nounced,  namely,  that  the  bank  was  rightfully  estab 
lished  as  a  fiscal  agency  of  the  General  Government,  and 
that  this  excluded,  by  necessary  implication,  the  right  of 
the  State  to  levy  a  tax  against  its  operations  without  the 
consent  of  Congress,  since  unlimited  power  to  tax  in 
volved  the  power  to  destroy.  "  If,"  said  Marshall,  "  the 
States  may  tax  one  instrument  employed  by  the  General 
Government  in  the  execution  of  its  powers,  they  may  tax 
any  and  every  other  instrument  which  would  defeat  the 
ends  of  the  General  Government.  This  was  not  intended 
by  the  American  people.  They  did  not  design  to  make 
their  government  dependent  on  the  States." 

This  principle  has  since  been  applied  to  many  subjects 
other  than  taxation;  and  a  long  line  of  adjudications  in 
the  Supreme  Court  has  resulted  in  the  establishment  of 
the  general  doctrine  so  essential  to  the  maintenance  of 
the  government  —  that  the  States  cannot  in  any  manner 
control  the  General  Government  in  its  legislation  or  oper 
ations  when  acting  within  the  sphere  of  its  constitutional 


John  Marshall  Memorial.  374 

powers,  and  that  any  interfering  legislation  on  their  part 
is  unconstitutional  and  void.  The  States  cannot  lay  the 
weight  of  their  little  finger  upon  the  powers  of  the  Gen 
eral  Government.  The  views  of  the  Chief  Justice  on  both 
branches  of  this  case  are  now  everywhere  accepted  and 
unquestioned,  and  their  general  adoption  is  among  the 
most  splendid  and  useful  triumphs  of  Marshall's  genius. 
As  a  complementary  doctrine  it  may  be  stated  that  the  Su 
preme  Court,  in  other  cases,  have  decided  that  the  United 
States  cannot  tax,  control  or  interfere  with  the  agencies 
or  instrumentalities  of  the  States. 

As  falling  within  the  principle  that  the  Federal  courts 
have  the  power  to  protect  all  rights  given  by  the  Consti 
tution  and  laws  of  the  United  States,  I  have  only  time 
to  refer  in  the  briefest  way  to  the  great  case  of  Cohens 
against  Virginia.  Some  time  before  this  case  was  decided 
the  Court  of  Appeals  of  Virginia,  in  1813,  declared  that 
they  were  not  bound  by  a  judgment  of  the  Supreme  Court 
reversing  a  judgment  of  the  highest  court  of  Virginia, 
even  although  it  involved  a  Federal  question  —  a  principle 
which  would  break  up  the  Union.  This  question  was 
again  presented  to  the  Supreme  Court  of  the  United 
States  in  the  case  of  Cohens  against  Virginia,  complicated 
by  the  further  fact  that  the  State  of  Virginia  was  a  party 
to  the  record.  This  came  before  the  Supreme  Court  in 
the  exercise  of  its  appellate  jurisdiction,  and  Chief  Justice 
Marshall,  in  the  great  judgment  which  he  delivered  in 
that  case,  in  1821,  decided  that  the  Supreme  Court  of  the 
United  States  had  rightful  jurisdiction  over  the  judgments 
of  the  State  tribunals  whenever  those  judgments,  in  the 
opinion  of  the  Supreme  Court  of  the  United  States,  denied 
to  any  person  any  right  which  the  Constitution  and  laws 


375  New  York  — Address  of  John  F.  Dillon. 

of  the  United  States  conferred,  and  this  even  though  a 
State  was  a  party  to  the  record.  That  doctrine,  absolutely 
vital  to  the  supremacy  of  the  Constitution  and  laws  of  the 
United  States,  has  never  since  been  disputed  and  is  daily 
acted  on  in  the  Supreme  Court  of  the  United  States. 
Mr.  Jefferson  severely  criticised  this  opinion.1 

As  a  striking  example  of  the  extensive  and  beneficent 
influence  and  operation  of  Marshall's  constitutional  de 
cisions,  I  select  what  is  known  as  the  New  York  Steam 
boat  Case  (reported  under  the  name  of  Gibbons  v.  Ogden2). 
This  was  decided  in  1824.  It  is  the  first  case  that  con 
strued,  in  any  important  particular,  the  commerce  clause 
of  the  Constitution.  It  is  a  well-known  historical  fact 
that  the  most  efficient  cause  of  the  formation  of  the 
Union  which  resulted  from  the  Constitution  of  the  United 
States  was  the  selfish  and  conflicting  regulations  of  the 
different  States  in  respect  of  commerce,  each  trying  to 
secure  an  advantage  over  the  others,  there  being  no  power 
under  the  Articles  of  Confederation  to  regulate  or  con 
trol  this  great  and  essential  subject.  This  experience  led 
to  a  provision  in  the  Constitution 3  in  these  words:  "  The 
Congress  shall  have  power  ...  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States."  This 
truly  vital  power,  as  respects  foreign  and  domestic  com 
merce,  is  contained  in  eleven  words  —  "  to  regulate  com 
merce  with  foreign  nations  and  among  the  several  States." 
There  is  no  attempt  to  define  what  is  "commerce,"  or  what 
is  meant  by  "  regulation."  The  case  involved  the  re 
spective  powers  of  Congress  and  the  States  over  com 
merce. 

1  Jefferson's  Writings  (Ford),  VoL  X,  pp.  229,  232. 

2  9  Wheaton's  Reports,  1. 

3  Article  I,  sec.  8,  par.  3. 


John  Marshall  Memorial.  376 

The  circumstances  out  of  which  that  case  arose  and 
under  which  the  decision  of  Marshall  was  made  are  ex 
tremely  interesting.  There  were  enacted  by  the  State  of 
Few  York  five  different  statutes  between  the  years  179S 
and  1811,  granting  or  confirming  to  Livingston  and  Ful 
ton,  or  one  of  .them,  the  exclusive  right  of  using  steam 
boats  upon  all  the  navigable  rivers,  bays  and  waters 
within  the  limits  and  jurisdiction  of  the  State  of  Few 
York  for  a  specified  term  of  years.  One  provision  was 
that  for  each  additional  boat  which  could  be  propelled 
by  steam  with  or  against  the  current  of  the  Hudson  river, 
at  not  less  than  four  miles  an  hour,  they  should  be  en 
titled  to  five  years'  extension  to  their  grant,  not  to  exceed 
thirty  years.  If  good  for  thirty  years  the  State  could,  of 
course,  renew  or  extend  it  indefinitely.  For  the  specified 
period  the  State  granted  a  monopoly,  under  pain  of  for 
feiture  of  boats  and  vessels  owned  by  others,  which  should 
violate  the  exclusive  right  granted  to  Livingston  and 
Fulton.  These  acts  recited  that  the  inducement  to  the 
grant  was  to  encourage  the  grantee  to  engage  in  the  un 
certainty  and  hazard  of  making  expensive  experiments 
in  improving  steam  navigation. 

In  1812  the  highest  court  of  Few  York  (in  Livingston 
v.  Yan  Ingen !)  sustained  the  validity  of  this  grant,  hold 
ing  that  it  was  not  repugnant  to  the  commerce  clause  of 
the  Constitution  of  the  United  States,  or  it  was,  at  all 
events,  good  until  Congress  should  enact  a  statute  which 
would  conflict  with  the  right  granted  by  the  State  of 
Few  York. 

The  grounds  and  reasons  in  favor  of  sustaining  the 
legislation  of  the  State  were  stated  by  Chancellor  Kent 
with  great  force.  Accordingly,  the  defendants  were  ab- 

i  9  Johnson's  Reports,  507,  572,  578  (1812). 


377  New  York  — Address  of  John  F.  Dillon. 

solutely  enjoined,  in  favor  of  Livingston  and  Fulton,  from 
navigating  the  Hudson  with  their  steamboat,  the  "  Hope," 
and  carrying  passengers  on  that  river  from  New  York  to 
Albany. 

Under  these  grants  and  under  the  decision  of  the  high 
est  court  of  New  York,  already  mentioned,  made  in  1812, 
a  large  amount  of  money  had  been  invested  in  the  con 
struction  of  steamboats.  Afterwards,  1818,  in  this  con 
dition  of  affairs,  the  case  of  Gibbons  against  Ogden  was 
brought  in  the  Court  of  Chancery  in  New  York.1 

Chancellor  Kent  enjoined  the  defendant,  Ogden,  from 
running  his  two  steamboats  between  Elizabethtown,  in 
New  Jersey,  and  the  City  of  New  York,  holding  that  the 
question  had,  after  an  elaborate  and  profound  discussion, 
been  decided  in  the  previous  case  of  Livingston  v.  Van 
Ingen.  At  the  January  term,  1820,  the  highest  court  of 
the  State  unanimously  affirmed  Chancellor  Kent's  order, 
holding  the  exclusive  monopoly  in  the  grants  made  by 
the  Legislature  of  New  York  to  be  valid,  and  that  its 
Court  of  Chancery  had  the  power  to  restrain  citizens  of 
another  State  from  navigating  the  waters  of  New  York 
with  vessels  propelled  by  steam,  although  such  vessels 
may  have  been  duly  enrolled  and  licensed  under  the  laws 
of  the  United  States  as  coasting  vessels. 

It  was  this  last  case  that  came  by  due  process  of  law 
before  the  Supreme  Court  of  the  United  States.  The 
cause  was  argued  by  counsel  of  the  greatest  eminence ; 
Wirt  and  "Webster  against  the  constitutionality  of  the 
New  York  legislation ;  Emmet  and  Oakley  in  favor  of  it. 
That  court  reversed  the  decree  of  the  New  York  courts 
and  held  that  the  power  of  the  General  Government  to 
regulate  commerce  extends  to  navigation  in  the  waters 

i  See  17  Johnson's  Reports,  488  (1820). 


John  Marshall  Memorial.  378 

throughout  the  entire  Union  and  does  not  stop  at  the  ex 
ternal  boundary  of  a  State,  and  that  the  grants  to  Liv 
ingston  and  Fulton  of  an  exclusive  right  to  navigate  all 
waters  within  the  jurisdiction  of  the  State  of  New  York, 
by  steamboats,  was  inoperative  as  against  the  laws  of  the 
United  States  regulating  the  coasting  trade,  and  could 
not  restrain  vessels  licensed  under  these  laws  from  navi 
gating  waters  within  the  jurisdiction  of  a  State  in  the 
prosecution  of  such  trade. 

The  opinion  of  the  court  was  delivered  by  Chief  Justice 
Marshall.  He  defined,  for  the  first  time,  the  meaning  of 
the  word  "commerce,"  as  used  in  the  Constitution.  He 
said  it  includes  navigation.  It  includes  trade  and  com 
merce.  But  he  went  further  and  said  that  it  is  intercourse 
itself.  He  defined  also  the  word  "regulate  "  in  a  defini 
tion  which  it  has  been  justly  said  can  never  be  excelled 
in  its  brevity,  accuracy  and  comprehensiveness.  To 
"  regulate  "  commerce,  said  Marshall,  is  to  prescribe  the 
rule  by  which  commerce  is  to  be  governed;  and  he, 
furthermore,  asserted  the  proposition,  so  extensive  and 
beneficent  in  its  future  operation,  that  "  wherever  com 
merce  among  the  States  goes,  the  judicial  power  of  the 
United  States  goes  to  protect  it  from  invasion  by  State 
legislatures." 

The  same  sound  and  liberal  principle  was  applied  by 
the  Chief  Justice  as  against  the  right  of  the  States  to  tax 
foreign  commerce,  in  the  case  of  Brown  against  Mary 
land. 

We  owe  it  to  Marshall  and  the  eminent  judges  who  sat 
in  the  court  with  him  that  our  vast  foreign  commerce  is 
unfettered,  and  that  our  interstate  commerce,  still  vaster, 
on  land  and  water,  by  boat,  or  rail,  or  telegraph,  knows 


379  New  York  — Address  of  John  F.  Dillon. 

no  State  lines,  is  subject  to  no  State  exactions,  and  is  as 
free  to  everyone  engaged  in  it  as  the  elements  of  air  and 
water. 

The  Constitution  provided  for  freedom  of  commerce 
between  the  States  by  prohibiting  one  State  from  levy 
ing  any  duties  upon  goods  brought  from  another  State. 
This  was  the  initiation  of  a  policy  new  in  the  history  of 
the  world,  but  this  provision  by  itself  would  not  be  ade 
quate  to  secure  the  end  sought,  viz.,  the  absolutely  free 
interchange  of  traffic  —  and  it  was,  therefore,  accompanied 
with  the  provision,  not  found  in  the  Articles  of  Confed 
eration,  vesting  in  Congress  the  power  of  commercial 
regulation,  both  as  to  external  and  internal  commerce. 
This  wise  policy  would  have  been  brought  to  naught  if 
the  constitutional  question  in  the  New  York  Steamboat 
Case  had  been  decided  the  other  way  by  the  Supreme 
Court  of  the  United  States. 

The  importance  of  the  decision,  and  of  the  principles 
and  grounds  on  which  Marshall's  judgment  rested  it, 
grow  upon  us  year  by  year,  commensurately  with  our 
ever-increasing  domestic  commerce.  But  the  value  of 
that  decision  is  not  to  be  estimated  from  a  commercial 
standpoint.  Its  momentousness  consisted  in  the  fact  that 
it  involved  in  its  consequences  the  existence  of  the  Union. 
Xew  Jersey  and  Connecticut  had  already  passed  retalia 
tory  laws.  The  Union  could  not  have  long  survived  if 
the  New  York  legislation  had  been  sustained  by  the  Su 
preme  Court  of  the  United  States. 

Marshall's  wisdom  and  foresight  so  expounded  the  com 
merce  clause  that  it  embraced  within  it  the  railway,  the 
telegraph  and  the  telephone,  as  they  successively  came 
into  existence.  And  now  every  vessel,  however  propelled, 
every  car  and  every  electric  message  destined  to  another 


John  Marshall  Memorial.  380 

State  has  a  national  character,  and  absolute  immunity 
from  State  control  or  interference.  Marshall's  judgments, 
our  great  waterways  and  our  transcontinental  lines  of 
railway  and  telegraph,  free  for  all  commercial  and  social 
intercourse,  without  regard  for  State  boundaries,  have 
done  more  than  any  other  visible  agencies  to  bind  to 
gether  into  one  united  nation  the  forty-five  States  which 
compose  it.  I  said  visible  agencies.  The  still  stronger 
agencies  are  invisible  —  I  mean  race,  blood,  genius  for 
government,  love  of  freedom,  the  common  law,  the  herit 
age  of  liberties  which  go  back  to  Hampden  and  Magna 
Charta,  pride  in  the  Union,  and  universal  respect  and 
reverence  for  law. 

Time  does  not  permit  further  reference  to  single  cases. 
Those  which  have  passed  under  this  rapid  review  illus 
trate  the  more  important  of  the  great  powers  and  limita 
tions  of  the  Constitution.  This  survey  suggests  a  few 
general  observations. 

The  field  of  constitutional  law  at  the  commencement 
of  Marshall's  judicial  career  was,  as  we  have  seen,  almost 
uncultivated.  It  was  not  even  explored.  Marshall  found 
the  Constitution  an  open  text.  Its  grants  of  power  to 
the  central  government  and  its  restraints  upon  the  States 
were  couched  in  the  fewest  and  most  general  words.  It 
wisely  defined  nothing.  As  it  came  fresh  from  the  hands 
of  the  Federal  Convention,  which  Jefferson  called  "  an 
assembly  of  demi-gods,"  it  reminds  one  of  what  a  cele 
brated  critic  said  of  Bayle's  Dictionary :  "  When  you  open 
it,  what  do  you  expect  to  find  ?  Nothing.  What  may  you 
find?  Everything."  Whether  this  new  instrument  meant 
everything  or  nothing,  it  became  the  solemn,  and,  when 
we  consider  the  stupendous  issues  at  stake,  the  awful 
duty  of  Marshall  and  his  associates  to  determine. 


381  New  York  — Address  of  John  F.  Dillon. 

"Was  the  new  government  merely  another  confedera 
tion,  and  the  Constitution  simply  the  mechanical  bond 
by  which  the  States  were  for  certain  enumerated  pur 
poses,  and  for  such  only,  loosely  articulated?  Or  was  it 
a  new  nation,  instinct  with  life  and  clothed  with  all  the 
powers  and  attributes  of  sovereignty  which  were  neces 
sary  for  its  growth,  development,  preservation,  protec 
tion  and  defense  against  all  hostile  comers,  foreign  and 
domestic? 

Each  one  of  the  cases  which  I  have  brought  under 
review  to-day,  and  others,  so  vitally  affecting  the  Consti 
tution  and  the  Union,  could  have  been  decided  the  other 
way.  Many  lawyers  and  statesmen  firmly  believed,  and 
earnestly  maintained  at  the  time,  that  they  ought  to 
have  been  decided  the  other  way.  On  all  these  sub 
jects  Marshall's  views  have  been  finally  accepted  by  the 
country  as  necessary  to  the  integrity  and  welfare  of  the 
Union,  and  are  no  longer  disputed  or  challenged. 

This  result  is,  in  no  small  measure,  due  to  the  charac 
ter  of  Marshall's  judicial  opinions.  They  have  qualities 
distinctively  their  own.  They  are  among  the  most 
massive  and  original  productions  of  the  human  intellect. 
Any  one  familiar  with  them  instantly  knows  Marshall's 
style.  It  has  been  said  that  it  was  hard  and  dry  and 
lacked  finish.  To  this  I  cannot  agree.  Unornamented, 
indeed,  his  opinions  are,  and  in  all  of  his  writings  I  recall 
only  a  single  metaphor.  But  for  strong,  vigorous,  mas 
culine  English,  which  expresses  his  meaning  with  the 
utmost  clearness,  precision  and  force,  I  do  not  know 
^where  his  judicial  style  is  excelled.  His  opinions  are 
characterized  still  more  distinctively  by  their  matter 
than  by  their  form.  Though  relating  in  many  cases  to 


y 


John  Marshall  Memorial.  382 

questions  on  which  parties  warmly  differed,  how  utterly 
free  they  are  from  political  bias ! 

Story  said:  "When  I  examine  a  case  I  go  from  head 
land  to  headland,  from  case  to  case;  Marshall  has  a  com 
pass,  puts  out  to  sea,  and  goes  directly  to  his  result." 
This  is  true.  Marshall  drew  upon  his  own  intellectual 
resources,  and  his  drafts  were  always  honored.  In  the 
light  of  his  own  intelligence,  like  another  Columbus,  he 
sailed,  with  dauntless  courage,  into  new  and  unknown 
regions,  guided  only  by  the  great  principles  of  right, 
reason  and  justice,  which  he  applied  with  equal  caution, 
courage  and  wisdom  in  the  practical  work  of  construing 
the  Constitution.  His  opinions  are  masterful  examples 
of  pure  reasoning,  and  logic,  and  legal  intuition.  It  has 
often  seemed  to  me  that  he  was  endued,  in  a  wonderful 
measure,  with  what  the  old  theologians  called  "  illumi 
nating  grace,"  enabling  him  to  see  the  end  from  the  be 
ginning,  and  the  bearing  and  effect  of  any  principle  or 
proposition,  however  artful  or  insidious,  with  a  far-reach 
ing  sagacity  that  was  never  surpassed.  His  power  of 
exposition  in  his  opinions  irresistibly  carried  conviction 
and  compelled  assent. 

He  had  other  first-rate  judicial  qualities.  He  courted, 
he  demanded,  argument.  He  had  the  aid  of  the  ablest 
lawyers  in  what  Mr.  Phelps,  himself  a  great  lawyer,  calls 
the  Augustan  age  of  the  American  Bar.  He  had,  in  a 
degree  often  remarked,  a  patience  which,  as  Mr.  Binney 
expressed  it,  was  only  exhausted  when  patience  ceased 
to  be  a  virtue.  Marshall  had,  moreover,  another  quality 
without  which  no  man  can  be  a  great  judge  —  courage. 
Marshall's  placid  courage,  exhibited  on  many  signal 
occasions,  knew  no  fear,  except  the  fear  of  God  and  the 
fear  that  through  some  unconscious  lapse  he  might  fall 


383  New  York  —  Address  of  John  F.  Dillon. 

into  error.  Consequences  of  his  decisions  to  himself  or 
to  parties,  if  he  ever  considered,  he  never  heeded.  Back 
of  all  this  was  the  simplicity,  worth  and  dignity  of  his 
lofty  character. 

During  Marshall's  term  the  outlines  of  the  Constitu 
tion  were  fixed,  every  one  of  its  more  important  powers 
and  prohibitions  was  expounded,  so  that,  as  Mr.  Justice 
Bradley  observed:  "It  may  truly  be  said  that  the  Con 
stitution  received  its  permanent  and  final  form  from  the 
judgments  rendered  by  the  Supreme  Court  during  the 
period  in  which  Marshall  was  at  its  head.  With  a  few 
modifications,  superinduced  by  the  somewhat  differing 
views  on  two  or  three  points  of  his  great  successor,  and 
aside  from  the  new  questions  growing  out  of  the  Civil 
War  and  the  recent  constitutional  amendments,  the  de 
cisions  made  since  Marshall's  time  have  been  little  more 
than  the  applications  of  principles  established  by  him 
and  his  venerated  associates." ! 

When  Marshall  went  upon  the  bench,  the  new  Govern 
ment  itself  and  the  Constitution  as  the  only  bond  of 
union  were  in  the  experimental  stage  of  their  existence. 
When  he  left  it  both  were  firmly  established.  Marshall's 
great  service  to  the  country  —  a  service  of  an  original 
and  creative  character,  and  one  which  the  course  and 
experience  of  his  life  and  his  wonderful  intellectual  qual 
ities  fitted  him  above  all  other  men  of  his  time  to  ren 
der  —  was  that  his  celebrated  judgments  expounding  the 
Constitution  supported  it  and  carried  it  safely  through 
the  feebleness  and  perils  of  its  infancy  and  placed  it  se 
curely  upon  the  foundations  on  which  it  has  ever  since 
rested  and  now  rests.  We  know  to-day  what  we  have. 

1  Mr.  Justice  Bradley,  Century  Magazine,  December,  1889. 


John  Marshall  Memorial  384 

We  realize  that  we  live  under  a  Constitution  which  pours 
upon  the  people  of  this  country  every  day  and  in  every 
State  the  continual  dew  of  its  blessings.  The  nation  was 
weak  'and  lowly  enough  when  Marshall's  Chief  Magis 
tracy  began.  But  we  view  it  to-day  in  its  lofty  estate, 
when  it  has  put  on  "  the  grandeur  of  its  history,"  and 
such  a  history  !  All  the  strength  and  joy,  patriotic  pride 
and  love  of  the  Union,  which  come  from  a  hundred  years 
of  great  achievements,  with  all  their  clustering  associa 
tions,  with  all  their  cherished  traditions,  with  all  our 
boundless  and  swelling  hopes  for  the  future —  all  this  is 
ours,  and  its  conscious  possession  inspires  and  underlies 
these  public  honors  to  the  name  and  memory  of  Mar 
shall.  We  feel  almost  sure  that  a  narrow,  rigid,  iron 
clad,  jealous  construction  of  the  Constitution  would  have 
changed  our  whole  history  and  perhaps  have  led  to  a 
shipwreck  of  the  Union.  No  military  chain  binds  us  to 
gether.  The  bond,  and  only  bond,  of  Union  is  the  Con 
stitution.  Instead  of  two  or  a  dozen  rival,  jealous,  clash 
ing  or  hostile  republics,  some  north,  some  south,  some 
east,  some  west,  we  have  one  united  nation,  held  together 
in  the  peaceful  embrace  of  the  Constitution. 

Under  Marshall's  views  it  has  been  possible  for  our 
stupendous  national  growth  and  development,  both  in 
his  time  and  ever  since,  to  take  place  in  accordance  with 
the  natural  process  of  evolution  without  any  strain  upon 
the  Constitution  and  without  danger  to  the  national  ex 
istence.  His  judgments  and  the  principles  on  which  they 
rest,  as  he  expounded  them,  are  fixed  lights  for  the  guid 
ance  of  people,  legislators  and  courts.  They  are  as  nec 
essary  to-day  as  they  were  when  they  were  pronounced. 
They  are  almost  as  important  as  the  texts  of  the  Constitu 
tion  which  they  construed,  and  to  which  they  gave  pre 
cision  and  authoritative  force. 


385  New  York  — Address  of  John  F.  Dillon. 

"We  know  to-day  that  there  is  no  real  danger  to  the 
Union  from  the  center,  from  the  President,  or  Congress, 
or  the  Federal  Judiciary,  or  all  combined.  Such  dangers 
have  proved  to  be  imaginary.  These  spectres  which  so 
alarmed  our  fathers  haunt  not  their  children.  I  should 
not  be  true  to  the  duty  of  the  occasion  if  I  did  not  add 
that  in  my  judgment  the  plain  lesson  taught  by  our 
whole  past  history  is  that  whatever  danger  exists,  if  any, 
is  to  be  found,  not  in  the  central  power,  but  in  the 
States.  In  the  past,  coming  down  even  to  the  present, 
States  have  passed  many  laws  of  a  character  that  would 
have  broken  up  the  Union  had  it  not  been  for  the  lim 
itations  on  their  powers  which  they  disregarded,  and 
which  have  only  been  made  effectual  by  the  judicial  en 
forcement  of  Marshall's  principles  of  Nationality.  These 
principles,  however,  guard  with  equal  vigilance  and  fidel 
ity,  as  of  equal  importance,  the  rights  of  the  States  as 
well  as  those  of  the  General  Government.  In  the  future, 
as  in  the  past,  our  reliance  must  be  upon  the  good  judg 
ment  and  affections  of  the  people  for  the  Constitution 
and  the  Union ;  but  so  far  as  judicial  action  or  remedy 
goes,  it  must  chiefly  be  upon  the  maintenance,  in  the 
spirit  and  with  the  wisdom  of  Marshall,  of  the  Contract- 
Clause,  the  Commerce-Clause,  and  Magna-Charta-Clauses 
of  the  Fourteenth  Amendment,  the  combined  effect  of 
which  is  to  place  under  ultimate  national  protection  the 
great  primordial  rights  of  life,  liberty,  property,  freedom 
of  commerce,  sanctity  of  contracts,  and  equality  before 
the  law. 

The  framers  of  the  Constitution,  "  their  faith  triumph 
ant  o'er  their  fears,"  inscribed  over  its  stately  and  mass 
ive  portal  that  it  was,  among  other  things,  ordained  and 
established  to  "  secure  the  blessings  of  liberty  to  our- 
VOL.  1—25 


John  Marshall  Memorial.  386 

selves  and  to  our  posterity."  The  Constitution  was  thus 
intended  to  be  perpetual.  Marshall's  labors  are  wrought 
into  its  very  fabric,  and  while  the  Constitution  remains 
Marshall's  fame  is  secure.  It  will  grow  with  the  growth, 
strengthen  with  the  strength,  and  brighten  with  the  in 
creasing  glories  of  the  Nation.  "We  hope  and  believe 
that  the  Union  of  these  States,  bounded  by  two  inviolable 
oceans,  will  continue  through  uncounted  years  to  diffuse 
its  blessings  and  benefits  upon  us  and  our  posterity.  We 
cannot  forecast  the  future.  God's  Providence  determines 
the  destiny  of  nations,  and  its  workings  are  often  as  in 
scrutable  as  they  are  irresistible.  It  may  be  that  the 
principles  of  American  constitutional  liberty  shall  become 
the  right  and  birthright  of  distant  peoples  whose  lands 
are  washed  by  other  seas  and  whose  eyes  look  up  to 
other  stars.  Certain  it  is  that  wherever  our  Constitution 
is  or  shall  go,  or  wherever  constitutional  liberty  shall 
exist  on  earth,  there  will  attend  it,  and  abide  with  it,  the 
spotless  and  honored  name  of  JOHN  MARSHALL. 

At  the  conclusion  of  the  foregoing  address,  former 
Chief  Judge  Charles  Andrews  offered  the  following  reso 
lution,  which  was  passed : 

Mr.  Chairman,  I  beg  leave  to  offer  a  resolution  of  thanks 
for  the  very  eloquent  and  noble  tribute  by  the  speaker 
to  Chief  Justice  Marshall,  and  to  request  that  a  copy  of 
the  address  be  furnished  to  the  Bar  Associations  for  pub 
lication. 


387  New  York  —  Address  of  Francis  M.  Finch. 


EXERCISES  AT  CORNELL  UNIVERSITY. 

The  day  was  appropriately  celebrated  at  Cornell  Uni 
versity,  Ithaca.  The  President  of  the  Universit}r,  John 
G.  Schurman,  presided,  and  the  principal  address  was 
delivered  by  ex- Judge  Francis  M.  Finch.  The  faculties 
and  students  and  members  of  the  bar  and  a  large  attend 
ance  of  citizens  were  present.  President  Schurman  in 
troduced  the  orator  of  the  day  with  the  following  obser 
vation  : 

President  John  Adams  once  said  that  the  gift  of  John 
Marshall  to  the  people  of  the  United  States  was  the 
proudest  act  of  his  life,  and  if  ex-Governor  Cornell  were 
here  to-day  he  would  undoubtedly  say  that  his  greatest 
gift  to  the  people  of  New  York  State  was  the  appoint 
ment  of  Francis  Miles  Finch  as  a  judge  of  the  Court  of 
Appeals,  now  the  honored  Dean  of  the  College  of  Law 
in  our  University. 

Address  by  Francis  M.  Finch.* 

One  hundred  years  ago  this  winter  day  a  new  Chief 
Justice  took  his  seat  upon  the  Bench  of  the  Federal 
Court  at  Washington.  The  court-room  of  the  time  was 
little  better  than  a  cavern,  situated  in  a  basement  dark 
and  dreary  at  the  best,  without  ornament  or  touch  of 
grace  or  dignity.  The  new  occupant  of  the  Bench  took 
his  seat  quietly,  careless  of  formality  or  display,  and  at 
once  addressed  himself  to  the  work  before  him.  The 
few  who  looked  on  at  this  simple  but  grave  assumption 

1  This  address  is  published  in  Yale  Law  Journal  for  March,  1901, 
VoL  X,  No.  5,  p.  171  et  seq. 


John  Marshall  Memorial.  388 

of  duty  saw  nothing  remarkable  in  the  man  himself,  sit 
ting  there  wrapped  in  the  dusk  of  his  gown.  The  head 
was  not  large;  no  massive  dome  of  brow  overhanging 
the  eyes;  small,  rather,  as  crown  of  a  tall  and  powerful 
form,  and  yet  a  form  so  emaciated  and  with  muscles  so 
relaxed  as  to  make  each  movement  somewhat  awkward. 
Only  in  the  brightness  of  the  intensely  black  eyes,  pierc 
ing  and  scintillant,  shone  a  trace  of  the  dominant  and 
powerful  soul,  waiting  in  the  dark  background  to  make 
all  men  know  and  heed.  Scarcely  at  all  impressed  were 
some  of  those  who  looked  on,  but  others  who  knew  the 
man  and  the  life  he  had  lived  lifted  a  warning  finger 
that  said  wait  and  you  will  see.  For  they  remembered 
that  he  came  to  his  new  duties  with  an  experience  rich 
and  full,  with  a  preparation  thorough  and  arduous,  and 
with  a  brain  of  strongest  and  finest  fiber.  He  had  fought 
through  many  battles  of  the  Ee volution,  displaying  his 
young  courage  under  the  eye  of  that  great  chief  who  led 
his  rustic  riflemen  against  the  veterans  of  an  empire,  and 
learning  from  him  an  indomitable  patience,  which  has 
no  better  type  than  the  familiar  one  of  the  obstructed 
river  grinding  its  slow  way  through  the  rock.  A  lieuten 
ant  at  nineteen,  a  captain  at  twenty -one,  and  often  serv 
ing  as  Judge- Advocate  where  the  Courts-Martial  sat 
with  their  swords  on  the  table,  he  shared  in  the  unsuc 
cessful  defense  of  the  fords  of  the  Brandywine,  in  the 
desperate  attack  at  Germantown  —  beginning  with  vic 
tory  but  ending  with  a  rout, —  and  then  in  the  cold  and 
famine  of  Yalley  Forge  —  camp  of  bloody  feet  on  the 
snows,  camp  of  starvation  for  those  who  did  not  freeze, 
camp  where  treason  and  grumbling  and  envious  ambition 
strove  hard  to  overthrow  the  sad  but  determined  leader 
of  them  all.  Surely  the  young  captain  learned  many 


389  New  York  —  Address  of  Francis  M.  Finch. 

lessons  from  the  war.  One  learns  fast  in  a  fight,  and 
lessons  are  plentiful,  if  hard,  where  hope  wrestles  with 
suffering  and  courage  baffles  despair. 

But  before  the  war  closed,  and  when  it  had  for  the 
moment  drifted  away  from  need  of  him,  he  began  the 
study  of  law  in  the  office  of  one  soon  to  be  chancellor, 
and  already  a  little  gray  with  the  cobwebs  of  equity,  but 
a  study  broken  more  or  less  by  occasional  military  serv 
ice,  and  so  mixing  law  and  war — books  and  drums  - 
until  peace  was  declared  and  law  became  the  dominant 
pursuit.  Not  always  dominant,  for  that  happened  to  him 
which  so  often  happens,  that  from  the  beach  where  law 
borders  on  politics  and  the  sands  touch  the  water,  he  was 
lifted  by  an  incoming  surge  and  swept  into  the  troubled 
waves  of  party  warfare: — scene  where  another  fight  was 
on  between  We  the  People  and  We  the  States  —  a  fight 
to  demand  of  him  the  matured  strength  and  vigor  of  his 
life. 

He  was  elected  to  a  seat  in  the  Virginia  Legislature. 
They  chose  men  in  those  days,  the  best  there  were  and 
with  wills  of  their  own,  and  the  young  man  beginning 
his  political  career  faced  adversaries  whose  thrust  and 
blow  were  the  keenest  and  heaviest  within  the  Yirginian 
borders.  More  lessons  and  of  a  different  sort  were  here 
learned,  and  one  gravest  of  all,  pushing  up  from  the 
tangle  of  conflicting  aims  and  snarling  rivalries,  that  the 
existing  Confederation  of  the  States  was  but  a  rotten 
girdle  which  the  weakest  whim  could  break,  and  that 
some  way  and  somehow  a  bond  must  be  forged,  iron- 
linked  and  steel-riveted,  to  concentrate  and  compact  the 
restless  and  defiant  sovereignties  into  one  solid  and  con 
trolling  organism.  Difficult  lesson  !  but  already  the  bond 
was  being  prepared.  Difficult !  for  men  like  not  to  be 


John  Marshall  Memorial.  390 

governed  and  prefer  to  govern,  and  freedom  is  a  word 
easy  to  misuse  and  a  tempting  lure  for  unreasoning 
crowds  not  able  to  measure  its  meaning.  And  so  when 
a  written  constitution  was  framed  about  every  word  of 
which  some  struggle  had  swirled  and  combatants  had 
gathered;  framed  so  as  to  tie  the  separate  States  into 
regular  orbits  about  a  sun  of  national  control  and  stop 
their  erratic  and  centrifugal  flights  into  the  boundless 
space  of  unchecked  liberty,  there  was  war  at  once,  war 
of  words  and  of  argument,  war  of  sarcasm  and  invective, 
war  everywhere  of  such  giants  as  there  were. 

Our  young  lawyer  and  legislator  was  drawn  into  this 
conflict  by  virtue  of  his  place  as  a  member  of  the  Virginia 
convention  to  which  the  proposed  Constitution  was  sub 
mitted  for  ratification.  ISTo  doubt  about  his  vote  at 
least,  but  terrible  doubt  as  to  the  final  outcome.  For  a 
determined  opposition  to  the  new  restraint  and  the  un 
tried  system  was  led  by  Patrick  Henry,  that  splendid 
orator  whose  brilliant  eloquence  blazed  all  through  the 
war,  and  has  become  only  a  marvelous  legend  in  these 
days  when  words  are  very  sober  things  and  common 
place,  and  few  dare  to  give  them  wings  that  they  may 
sometimes  fly  and  not  eternally  crawl.  But  the  eloquence 
of  Henry  by  no  means  stood  alone.  It  was  backed  and 
buttressed  by  the  cooler  arguments  of  Monroe  and  Mason 
and  other  champions  of  State  sovereignty  who  rang  the 
changes  on  what  they  were  pleased  to  regard  as  the  utter 
destruction  of  human  rights.  It  needed  strong  men  to 
confront  these  formidable  adversaries  especially  since  the 
Constitution  was  not  popular  among  the  people.  It 
needed  as  it  had  the  learning  and  ability  of  Madison,  the 
earnest  appeals  of  Eandolph,  the  legal  adroitness  of 
Wythe,  and  more  than  all  the  lucid  and  resistless  logic  of 


391  New  York  —  Address  of  Francis  M.  Finch. 

Marshall,  whose  name  at  last  was  on  all  men's  tongues. 
It  is  not  too  much  to  assert  that  he  bore  a  leading  part 
against  the  assault  in  a  debate  lasting  twenty-five  days, 
and  that  the  narrow  majority  by  which  Virginia  accepted 
the  Constitution  was  largely  due  to  his  powerful  advocacy. 
He  was  no  orator,  he  had  no  graces  of  rhetoric,  the  tones 
of  his  voice  were  neither  mellow  nor  persuasive,  no  subtle 
magnetism  flashed  along  the  lines  of  his  thought,  but  he 
was  compelled  to  win,  if  win  he  did,  by  the  sheer  force 
of  unanswerable  argument,  running  cr}rstal-clear,  rising 
grandly  over  all  obstructions,  and  floating  truth  to  its 
harbor. 

See  again  what  lessons  he  was  learning,  all  unconscious 
of  their  bearing  on  his  future  life  and  fame.  Before  such 
antagonists,  certain  to  detect  mistake  or  riddle  fallacy,  it 
was  imperative  that  he  should  know  the  Constitution 
thoroughly  in  every  word  and  line,  that  he  should  have 
precise  views  of  its  construction  and  of  the  scope  and 
range  of  its  operation,  and  this  required  prolonged  study 
and  patient  and  honest  thought.  How  well  he  did  the 
work  all  authorities  agree.  Even  Henry  praised  his 
"  candor  "  and  awarded  him  '  veneration  and  respect," 
and  Wirt  tells  us  the  secret  of  his  wonderful  power.  He 
saw  always,  at  once  and  as  if  by  intuition,  the  pivotal 
point  of  every  controversy  on  which  the  conclusion  was 
sure  to  swing,  and,  disdaining  all  artifice  and  discarding 
all  incident  or  accident  surroundings,  moved  straight 
upon  it  and  enveloped  it  with  a  merciless  logic.  Every 
link  in  the  chain  of  his  reasoning  was  sound  and  clean, 
developed  with  a  marvelous  simplicity  as  clear  as  it  was 
strong.  There  was  no  escape  from  the  deadly  sequence 
of  his  thought,  and  his  masterful  capacity  lay  in  his 
power  to  compel  conviction,  to  force  surrender. 


John  Marshall  Memorial.  392 

But  not  yet  was  his  preparation  complete.  It  seemed 
almost  as  if  some  Providence  was  training  him  like  an 
athlete  for  a  struggle  vital  to  a  free  civilization.  For  he 
passed  a  term  in  Congress  mingling  with  statesmen  and 
partisans  and  studying  the  ways  of  each;  then  went  to 
France  on  a  diplomatic  mission  and  returned  disgusted 
with  a  race  which  vilified  everything  American,  and  not 
for  the  last  time  either,  as  we  were  taught  during  our 
war  with  Spain,  and  should  not  pardon  quite  so  cheaply 
as  we  do;  next  was  made  Secretary  of  War  and  then 
Secretary  of  State,  where  the  methods  of  diplomacy  and 
the  doctrines  of  international  law  became  familiar  to  his 
thought;  and  finally  and  at  last,  the  preparation  ended, 
Chief  Justice  of  the  Supreme  Court,  and  the  man  whom 
we  saw  quietly  taking  his  seat  on  the  Bench. 

Let  him  sit  there  silent  for  a  moment  while  we  con 
sider,  as  perhaps  he  was  doing,  the  trouble  behind  him 
and  the  danger  in  his  front,  for  both  threatened  the  suc 
cess  of  his  judicial  career.  The  court  itself  was  in  its 
infancy,  but  twelve  years  old,  just  learning  to  walk  alone. 
It  had  done  little  in  that  period,  gained  nothing  in  the 
popular  estimation  and  not  overmuch  in  its  own.  Its 
members  had  been  constantly  changing,  and  refusal  to 
serve  was  a  common  answer  to  judicial  appointment. 
Even  the  great  ability  of  John  Jay  and  the  respect  which 
he  inspired  could  not  lift  the  dead  weight  of  a  position 
so  humiliated  that  the  judges  had  been  required  to  act 
as  commissioners  of  pensions  and  to  dole  out  the  nation's 
charities.  Jay,  himself,  on  his  resignation,  spoke  dis- 
couragingly  of  the  tribunal  and  ventured  to  doubt  whether 
defects  in  its  organization  would  not  inevitably  impede 
its  usefulness.  Doubtless  this  was  the  prevailing  impres 
sion  though  hardly  a  just  one,  for,  in  its  brief  life,  it  laid 


393  New  York  — Address  of  Francis  M.  Finch. 

down  some  foundation  principles  of  great  value  and  which 
no  successor  was  required  to  overrule  or  disregard.  But 
after  all,  these  did  not  suffice  to  lift  it  to  its  true  and  des 
tined  place  as  one  of  the  co-ordinate  departments  of  the 
government,  or  to  secure  for  it  the  reputation  and  au 
thority  which  was  its  due.  Nobody  feared  it.  Many 
gave  it  disrespect.  That  was  the  trouble  which  Marshall 
saw  behind  him;  a  court  to  be  lifted  from  a  low  level 
into  higher  and  serener  air;  a  court  despised  to  be  made 
a  court  respected ;  a  tribunal  of  little  power  to  be  trans 
formed  into  an  invincible  guardian  of  national  justice 
and  peace. 

The  trouble  in  front  of  him  was  of  a  different  sort. 
Great  judge  as  he  was,  let  us  not  forget  that  he  was 
human.  Let  us  not  try  to  make  of  him  a  bronze  statue, 
swarthy  and  stern,  for  there  were  sensitive  vibrations  in 
his  nerves  and  warm  blood  in  his  veins.  He  could  love 
with  an  absorbing  passion,  and  those  who  do  that  can  at 
least  dislike  a  little  and  on  occasion.  The  man  who  for 
twenty  years  and  in  spite  of  his  public  toils  could  wrap 
about  the  invalid  wife  of  his  youth  a  most  devoted  affec 
tion  and  tender  care  was  likely  to  be  a  man  who  would 
feel  what  he  regarded  as  false  or  wrong  down  to  the  bone. 
And  he  surely  foresaw  that  his  patience  and  his  temper 
as  well  as  his  intellect  were  to  be  subjected  to  a  severe 
and  continued  strain.  For  he  had  not  seen  the  rapid 
growth  of  party  strife,  so  poisoned  with  venomous  lies  on 
both  sides  that  the  simple  truth  remains  yet  obscure,  with 
out  recognizing  that  the  head  and  front  of  the  clamor  for 
State  rights  and  for  a  strict  construction  of  the  Constitu 
tion,  so  narrow  as  to  throttle  the  infant  in  its  cradle,  was 
Thomas  Jefferson,  popular  idol  and  leader,  who  had  ren 
dered  service  great  and  brave  in  behalf  of  independence, 


John  Marshall  Memorial.  394 

and  now,  about  to  take  his  seat  in  the  Presidential  chair, 
would  be  likely  to  wield  the  whole  executive  force 
against  a  centralized  national  power;  no  man  suspecting 
how  much  the  sobering  pressure  of  official  responsibility 
would  make  his  action  better  than  his  words  and  his  doc 
trine  disappear  in  his  deeds. 

These  two  men  did  not  like  each  other.  They  could 
not.  They  were  made  on  different  patterns.  If  for  a 
time  they  treated  each  other  with  some  politeness  it  was 
as  thin  and  cold  as  the  baby  ice  of  a  first  freeze.  A 
collision  was  sure  to  come.  And  so,  in  front  of  the  new 
occupant  of  the  Bench,  loomed  up  a  dangerous  and  diffi 
cult  struggle  against  an  adversary  astute  and  crafty,  en 
trenched  in  the  very  fortress  of  power,  and  at  the  head 
of  a  party  strong  in  the  victory  it  had  won.  The  Chief 
Justice  had  not  only  that  hostility  to  face,  but  also  to 
stand  on  guard  over  his  own  fairness  and  impartiality, 
and  to  banish  from  his  judgment  every  trace  of  such  un 
conscious  prejudice  as  might  warp  his  thought  with  per 
sonal  distrust  or  partisan  desire;  for  the  smoke  of  the 
battle  hung  yet  about  him  and  there  were  live  coals  in 
the  ashes,  but  never  again  to  be  blown  into  a  flame.  In 
my  study  of  the  man  I  have  been  most  strongly  impressed 
with  the  swift  and  thorough  way  in  which  he  put  off  the 
fighting  partisan  and  put  on  the  calm  and  thoughtful  and 
rigidly  impartial  judge. 

The  inevitable  collision  came,  and  over  as  little  a  mat 
ter  as  the  appointment  of  a  justice  of  the  peace  in  the 
District  of  Columbia.  President  Adams,  in  the  waning 
moon  of  his  term  and  just  before  it  ended,  lent  himself 
to  a  seizure  of  vanishing  spoils  by  filling  all  possible 
offices  with  his  own  partisans  and  so  leaving  to  the  victori 
ous  enemy  only  the  shouting  but  no  booty.  In  a  changed 


395  New  York  — Address  of  Francis  M.  Finch. 

form  the  charming  game  has  been  played  in  our  own  day. 
Among  these  death-bed  appointees  was  one  man  whose 
commission  as  justice  of  the  peace  for  the  District  had 
been  made  out  and  signed  by  the  President  after  the 
nomination  had  been  confirmed  by  the  Senate,  but  not 
delivered  to  the  anxious  officer  because  it  fell  into  the 
hands  of  Madison,  the  new  Secretary  of  State,  who,  by 
his  chief's  orders,  refused  to  deliver  it,  and  so  blasted  the 
hopes  of  the  waiting  appointee. 

We  may  not  blame  Jefferson.  What  he  could  snatch 
from  the  last  blaze  of  the  Federal  fire  he  had  some  rea 
son  to  think  was  his.  But  the  embryo  official,  after  de 
manding  delivery  of  his  commission  and  getting  a  curt 
refusal,  applied  to  the  Supreme  Court  for  a  writ  of  man 
damus  to  be  directed  to  Madison  commanding  him  to  de 
liver  the  commission  to  the  appointee.  Jefferson  was 
enraged.  Naturally.  What  business  had  a  court  to  ques 
tion  the  orders  of  the  President  or  summon  his  Secretary 
to  answer  at  its  Bar  ?  And  so  the  Secretary  refused  to 
answer,  or  even  to  appear  in  the  proceeding,  and  the 
Attorney-General  answered  only  as  a  witness  and  upon 
compulsion.  It  was  long  before  the  decision  came,  for, 
beyond  this  studied  contempt  of  a  constitutional  tribunal, 
there  was  a  deliberate  and  venomous  attack  upon  the  in 
dependence  of  the  Judiciary,  which  began  with  an  Act  of 
Congress  abolishing  the  August  term  of  the  court,  so  that 
it  was  more  than  a  year  before  the  case  was  finally  deter 
mined.  But  the  time  came  at  last  and  Marshall  delivered 
the  first  of  those  opinions  upon  constitutional  questions 
which  have  made  his  name  famous  and  lifted  the  court  to 
its  true  place  in  the  republican  system. 

And  this  is  how  he  did  it.  1  may  tell  it,  I  think,  so  that 
no  legal  study  or  training  will  be  needed  for  its  compre- 


John  Marshall  Memorial.  396 

hension;  and  I  must  tell  it  for  a  very  grave  reason  which 
will  develop  itself  in  the  process. 

He  began  by  stating  the  questions  which  the  applica 
tion  raised  in  their  natural  and  logical  order.  First:  has 
the  applicant  a  right  to  the  commission  which  he  demands? 
Second :  if  he  has  and  the  right  has  been  violated,  does  the 
law  afford  him  a  remedy  ?  Third:  if  it  does,  is  that  rem 
edy  a  writ  of  mandamus  by  the  Supreme  Court  ?  He  dis 
cusses  these  questions  in  the  order  of  their  statement.  As 
to  the  first  he  holds  that  the  appointment  was  complete 
when,  after  confirmation  of  the  nomination  by  the  Senate, 
the  President  had  signed  the  commission,  and  the  Secre 
tary  of  State  had  affixed  the  Great  Seal,  but  that  the  re 
cording  the  document  and  delivering  it  to  the  appointee 
were  purely  ministerial  acts  following  the  appointment, 
and  not  essential  parts  or  elements  of  it,  and  therefore 
the  applicant  was  duly  appointed  and  so  entitled  to  have 
his  commission.  To  the  second  question  the  Chief  Jus 
tice  answered  that  the  right  of  the  officer  so  duly  ap 
pointed  to  his  commission  and  his  office  was  a  valuable 
and  vested  right,  which  had  been  violated  by  a  withhold 
ing  of  the  commission,  and  for  such  violation  the  law  gave 
a  remedy  by  an  action  for  damages,  and  where  that  could 
afford  no  adequate  redress,  then  by  a  writ  of  mandamus, 
commanding  performance  of  the  duty  refused.  So  far 
the  applicant  was  successful,  but  when  it  came  to  the 
third  question,  now  become  vital  and  decisive  and  shown 
to  be  such,  the  judge  ruled  that  while  an  Act  of  Congress 
had  authorized  the  court,  in  a  class  of  cases  to  which  the 
one  at  bar  belonged,  to  issue  a  writ  of  mandamus,  yet 
that  authority  was  ineffective  because  the  Act  in  that  re 
spect  was  in  violation  of  the  Constitution  and  so  was  null 
and  void ;  and  since  no  such  authority  had  been  granted 


397  New  York  —  Address  of  Francis  M.  Finch. 

from  any  other  source,  the  court  had  no  right  to  issue  the 
writ  and  the  petition  for  it  should  therefore  be  denied. 

I  spare  you  a  detail  of  the  argument,  but  call  your  atten 
tion  to  two  of  the  vastly  important  doctrines  thus  estab 
lished,  and  to  a  criticism  of  the  opinion  which  has  more 
or  less  prevailed,  but  which  I  think  to  be  without  ade 
quate  foundation.  The  decision  adjudged  that  Congress 
was  not  like  the  English  Parliament,  unlimited  in  its  action 
and  omnipotent  in  legislation,  but  was  restrained  by  the 
limitations  of  the  Constitution,  the  written  evidence  of 
the  people's  will;  and  that  there  was  a  tribunal,  created 
by  the  same  masterful  will,  which  could  enforce  the  re 
straint  by  annulling  and  refusing  to  act  upon  the  illegal 
legislation.  There  was  a  two-fold  value  to  this  doctrine. 
It  not  only  confined  the  National  Legislature  within  the 
prescribed  limits,  but  it  provided  also  a  peaceable  solution 
of  the  inquiry,  certain  to  continually  arise,  whether  a 
specified  enactment  was  or  was  not  in  accord  with  the 
Constitution ;  dispute  likely  to  be  rancorous  and  terminate 
in  force  if  no  other  method  of  decision  was  provided. 
The  opinion  further  established  that  no  officer  of  the  gov 
ernment  was  shielded  from  legal  accountability  by  his 
official  character  if  he  trampled  upon  the  vested  rights  of 
the  most  humble  citizen. 

It  was  not  strange  that  the  new  President  and  his  fol 
lowers  looked  askance  at  the  looming  up  of  this  judicial 
supervision,  and  sought  to  break  its  force  by  the  criticism 
that  so  much  of  the  opinion  as  passed  on  the  validity  of 
the  petitioner's  appointment  was  extra-judicial,  unneces 
sary  to  the  decision,  and  so  without  authority,  and  intro 
duced  to  vent  some  Federal  spleen  on  the  President,  and 
drive  him  to  surrender  of  the  offices  which  he  withheld ; 
because,  said  the  assailants,  if  the  court  had  no  jurisdic- 


John  Marshall  Memorial.  398 

tion,  as  it  declared  it  had  none,  to  issue  the  writ  of  man- 
damns  at  all,  what  mattered  it  whether  the  applicant  was 
duly  appointed  or  not,  and  what  possible  concern  had 
the  judge  with  that  inquiry.  The  suggestion  never  in 
the  least  touched  or  weakened  the  magnificent  force  of  the 
constitutional  argument,  but  has  cast  a  blur  upon  the 
legal  excellence  and  accuracy  of  the  opinion  which  has 
disturbed  even  devoted  admirers  of  its  author,  and  led 
sometimes  almost  to  apology. 

In  the  centennial  history  of  the  court,  published  with  its 
approval,  the  opinion  is  said  to  be  "  in  some  respects  obiter 
dictum"  and  the  same  thing  is  apparently  conceded  by 
the  court  itself  as  late  as  1880  in  the  case  of  United  States 
v.  Schurz  (102  U.  S.  395),  though  it  is  added  that  the  ruling, 
although  said  to  be  extra-judicial,  has  been  steadily  fol 
lowed.  I  do  not  admit  the  soundness  of  the  criticism.  I 
have  no  apologies  to  make,  but  insist  that  none  are  needed. 
I  maintain  the  judicial  correctness  and  propriety  of  the 
whole  opinion  and  deny  that  there  is  a  single  word  in  it 
which  is  extra-judicial  or  unnecessary  to  the  ultimate  de 
cision.  Be  patient  with  me,  I  pray  you,  while  I  venture 
to  remove  even  the  faintest  film  of  suspicion  from  one  of 
the  ablest  and  fairest  opinions  ever  traced  by  a  judicial 
pen. 

I  admit  that  ordinarily  where  the  jurisdiction  of  the 
court  to  grant  the  relief  sought  is  challenged  that  becomes 
the  first  question  to  be  determined,  and  if  the  court  is  of 
the  opinion  that  such  jurisdiction  does  not  exist  the  case 
is  ended  and  comment  upon  the  possible  rights  of  the 
parties  is  immaterial,  impertinent,  and  binds  nobody.  But 
that  rule  on  occasion  comes  in  collision  with  another  rule 
to  which  it  is  necessarily  subordinate;  a  rule  of  great 
value  and  of.  extremest  wisdom,  never  to  be  consciously 


399  New  York — Address  of  Francis  M.  Finch. 

violated.  That  rule  is  that  an  Act  of  the  Legislature 
should  never  be  declared  unconstitutional  and  therefore 
void  except  where  such  declaration  is  absolutely  and  in 
evitably  necessary  to  a  determination  of  the  case  before 
the  court:  that  is  to  say,  that  if  the  controversy  can  be 
determined  on  other  grounds  it  must  be  determined  on 
other  grounds,  and  the  constitutional  question  be  left  to 
some  proper,  because  imperative,  occasion. 

The  power  to  vindicate  the  Constitution  against  legisla 
tion  which  contravenes  it  is  the  highest  and  most  delicate 
power  of  the  judiciary.  By  the  early  court  it  was  spoken 
of  with  reverence  as  an  "  awful "  power.  It  is  no  common 
thing,  no  cheap  resource  to  be  drawn  on  at  will.  It 
challenges  the  action  of  the  people's  representatives,  of  a 
co-ordinate  department  of  the  Government ;  it  throttles 
a  law  by  them  enacted ;  it  measures  the  Act  by  the  funda 
mental  law.  Indeed  such  a  tremendous  power  should 
never  be  exerted  without  a  necessity  so  imperative  that 
from  it  there  is  no  escape. 

To  that  rule,  which  Marshall  himself  afterward  formu 
lated,  he  gave  a  just  obedience  as  it  was  his  duty  to  do. 
That  duty  demanded  that  before  raising  the  constitutional 
question  he  should  first  determine  whether,  to  solve  the 
case  before  him,  it  was  necessary  to  raise  it;  whether  it 
might  not  be  that  the  writ  could  be  refused  without 
touching  the  grave  question  of  constitutional  jurisdiction 
at  all ;  in  which  event  that  question  must  be  left,  for  the 
time  at  least,  unsolved.  To  perform  that  duty  the  judge 
was  compelled  first  to  ascertain  whether  on  the  facts  the 
applicant  was  entitled  to  the  issue  of  a  mandamus.  Only 
if  he  was  did  the  further  question  arise  whether  the  court 
had  power  to  issue  it.  For  the  inquiry  was  not  whether 
there  was  general  jurisdiction  over  the  subject-matter  of 


John  Marshall  Memorial.  400 

the  applicant's  right  to  his  commission,  nobody  disputing 
that,  but  whether  there  existed  the  special  jurisdiction  to 
award  a  particular  form  of  remedy,  and  so,  if  the  applicant 
was  not  entitled  to  that  remedy,  whether  the  court  could 
give  it  or  not,  that  would  be  the  sufficient  and  proper 
answer.  To  add  another,  obviously  needless,  and  yet  in 
volving  a  grave  constitutional  question,  would  be  extra- 
judicial  and  rob  the  decision  on  that  point  of  all  authority. 
"  Obiter  dictum !  "  Jefferson  would  have  shouted  —  a 
Federal  harangue  tacked  to  an  ended  opinion ! 

I  may  possibly,  at  the  expense  of  some  endurable  repeti 
tion,  put  the  justification  of  the  opinion  as  a  whole  in 
another  form.  There  were  three  methods  of  framing  it 
and  only  three.  First:  the  judge  might  hold  that  the 
appointment  was  not  complete  until  the  commission  was 
delivered  and  so  the  applicant  had  no  right  to  a  mandamus. 
That  would  end  the  case  and  the  opinion,  for  since  the 
writ  was  refused  for  one  sufficient  reason  it  was  not  per 
missible  to  give  another  involving  the  constitutionality 
of  a  statute.  Second:  he  might  pass  over  the  question 
of  the  applicant's  right  in  silence  and  go  to  the  constitu 
tional  question.  But  in  that  event  those  who  believed 
the  applicant  had  no  right  could  dispute  the  necessity  of 
the  constitutional  argument  and  therefore  deny  its  au 
thority;  saying  that  the  judge  silently  assumed  what  was 
false  to  justify  his  resort  to  the  constitutional  question, 
and  did  not  dare  either  to  assert  or  argue  the  proposition 
assumed.  Or,  third :  he  could  do  as  he  did,  first  establish 
the  applicant's  right,  and  then,  the  necessity  of  deciding 
the  constitutional  question  being  shown,  proceed  finally 
to  the  argument  of  that. 

And  so  I  am  confident  that  there  is  not  and  never  has 
been  any  real  foundation  for  the  criticisms  of  enemies  or 


401  New  York  — Address  of  Francis  M.  Finch. 

the  half-doubt  of  friends;  that  the  opinion  is  not  marred 
by  the  presence  of  a  single  needless  or  extra-judicial  word ; 
that  from  the  beginning  to  the  end  it  moves  on  its  way 
with  a  logic  as  faultless  as  it  is  irresistible,  and  with  a 
simplicity  that  is  massive  and  grand ;  a  carving  cut  from, 
flawless  marble  by  a  master  hand.  ^-*\ 

"We  may  take  this  case  as  a  type  and  example  and  spare 
ourselves  any  discussion  of  those  others  which  slowly  but 
surely  built  up  that  solid  edifice  of  constitutional  law 
which  has  proved  to  be  the  fortress  and  the  glory  of  our 
republican  institutions.  For  thirty-four  years  he  con 
tinued  his  judicial  labors,  handing  down  from  the  Bench 
about  five  hundred  opinions.  They  were  models  of  ju 
dicial  style.  I  often  wondered  how  it  happened  that  his 
severe  reasoning  and  close  and  inexorable  logic  was 
clothed  in  words  not  only  simple,  but  always  apt  to  con 
vey  the  thought,  and  flowing  along  with  a  movement  as 
smooth  and  grand  as  that  of  a  deep  river  unvexed  by 
rocks  or  rapids.  Perhaps  Judge  Story  has  given  us 
the  explanation.  He  credits  Marshall  with  much  of 
literary  taste,  describing  him  as  a  persistent  reader  of 
the  famous  English  authors  and  as  specially  fond  of 
poetry,  and  even  tempted  into  writing  verses  of  his  own. 

The  fact  tends  to  lessen  our  wonder  at  the  lucid 
smoothness  of  his  style,  the  even  balance  of  his  sen 
tences,  and  now  and  then  the  dainty  choice  of  an  adjec 
tive.  In  one  instance,  at  least,  a  flash  of  irony  lit  up  the 
sober  flow  of  his  argument  with  an  interjected  phrase 
delicate  indeed  but  having  a  cutting  edge.  And  yet  no 
grace  or  elegance  of  style  was  ever  chosen  for  itself 
alone,  but  always  as  the  fit  vestment  of  close  and  logical 
thought.  In  that  direction  his  opinions  were  remarkable 
for  many  things  and  in  many  ways. 
VOL.  1  —  26 


John  Marshall  Memorial.  402 

They  exhibited  on  occasion  a  resolute  and  unflinching 
but  calm  and  dignified  courage.  It  was  no  light  matter 
to  face  the  hostile  legislation  of  one  of  the  older  States, 
practically  defying  a  decision  of  the  court,  and  the  order 
of  a  Governor  calling  out  his  troops  to  resist  by  force  the 
execution  of  a  Federal  decree.  Yery  grave  but  very  firm 
were  Marshall's  words  as  he  stated  the  momentous  truth 
that  if  any  State  could  at  will  so  nullify  a  national  judg 
ment,  there  was  an  end  of  the  court  and  of  the  Constitu 
tion,  and  the  nation  was  resolved  into  warring  and  .col 
liding  fragments ;  and  somewhat  stern  his  order  that  the 
judgment  should  be  enforced. 

It  took  some  courage,  too,  on  the  trial  of  Burr  for  trea 
son,  to  lay  down  a  rule  of  evidence  which  made  a  con 
viction  impossible  in  the  face  of  a  strong  popular  demand 
for  such  conviction.  Burr  was  distrusted  by  Washing 
ton,  and  Marshall  revered  Washington.  Burr  shot  |Iam- 
ilton,  and  Marshall  loved  Hamilton.  That  Burr  was  at 
least  guilty  of  some  unlawful  conspiracy  was  plain,  and 
the  whole  force  and  energy  of  Jefferson's  administration 
and  of  his  party  following  was  brought  to  bear  against 
the  man  who,  by  a  sort  of  political  treachery,  had  almost 
beaten  Jefferson  out  of  the  Presidency.  But  there  was  the 
constitutional  definition  of  treason  requiring  some  overt 
act  to  be  proved  by  at  least  two  witnesses  —  a  definition 
meant  to  protect  the  people  against  that  horrible  and 
dangerous  doctrine  of  constructive  treason  which  had 
stained  the  English  records  with  blood  and  filled  the 
English  valleys  with  innocent  graves.  The  steadfast 
judge  would  not  relax  or  weaken  the  rule,  and  trials  for 
treason  are  almost  unknown  in  our  legal  records. 

His  opinions  are  also  remarkable  for  their  great  reach 
into  the  future  of  the  nation  and  almost  prophetic  under- 


403  New  York  —  Address  of  Francis  M.  Finch. 

standing  of  its  coming  growth.  "When  Jefferson  bought 
of  Napoleon  the  whole  Orleans  territory  and  so  made 
American  the  mouths  of  the  great  river,  he  did  a  thing 
marvelously  wise  in  its  foresight  'and  magnificent  in  its 
results.  It  was  the  victory  of  a  fortunate  moment.  The 
President  cornered  the  Emperor.  Yet,  so  deep  had  the 
partisan  spirit  of  the  time  sunk  into  Jefferson  that  we 
find  him  saying  to  his  friends  that  he  knew  he  had 
thereby  violated  the  Constitution.  Not  so  at  all.  He 
merely  violated  his  own  narrow  and  grudging  construc 
tion  of  that  instrument,  and  read  it  more  correctly  by 
his  acts  than  by  his  words. 

Marshall,  with  eyes  looking  far  into  the  future,  had 
settled  all  such  questions.  He  said  that  the  Constitution 
had  made  of  the  people  of  the  States  a  nation,  and  it  had 
a  nation's  right  to  acquire  property  by  conquest  or  pur 
chase.  He  said  again:  "The  power  of  governing  and 
legislating  for  a  territory  is  the  inevitable  consequence 
of  the  right  to  acquire  and  hold  territory.  .  .  .  Ac 
cordingly,  we  find  Congress  possessing  and  exercising 
the  absolute  and  undisputed  power  of  governing  and 
legislating  for  the  territory  of  Orleans."  These  wise  and 
weighty  words  shine  down  upon  us  in  the  emergencies 
through  which  our  national  life  is  passing  as  if  they  had 
been  kindled  and  aflame  for  the  new  summer  of  a  new 
century.  He  who  spoke  them  has  been  silent  for  more 
than  sixty  years,  and  yet  they  come  to  us  as  if  he  was  yet 
alive  and  saw  and  felt  their  fitness  for  the  new  duties 
which  have  led  us  into  untried  ways.  There  is  in  them 
the  light  that  will  guide  our  hesitant  steps,  the  strength 
that  will  brace  all  weariness  or  fear,  the  germ  of  a  vital 
truth  expanding  before  our  eyes.  They  should  encour 
age  the  man  who  shivers  before  the  far-flying  of  the  na- 


John  Marshall  Memorial.  404 

tion's  flag;  they  should  shame  the  lips,  few  and  scattered, 
spitting  venom  at  the  manliness  of  those  who  bear  it; 
they  should  shame  the  mere  demagogue,  though  nothing 
can  shame  him;  and  they  should  serve  as  the  warrant  for 
that  vigorous  national  growth  which  is  both  natural  and 
necessary;  for  when  a  nation  ceases  to  grow  that  nation 
begins  to  die. 

Silent  for  more  than  sixty  years  !  alas,  yes !  For  death 
came  to  the  great  Chief  Justice  as  it  comes  to  all ;  found 
him  with  the  harness  on,  struggling  against  weakness  to 
drag  his  accustomed  load ;  left  him  asleep  under  the  Vir 
ginian  sod,  every  blade  of  which  he  loved  with  a  Vir 
ginian's  love  for  his  native  soil;  left  him  with  a  simple 
and  modest  stone  carved  with  the  simple  and  modest 
words  dictated  by  himself  to  mark  his  resting  place. 
We  may  say  of  it,  as  Goldwin  Smith  has  beautifully  said 
of  the  plain  tomb  of  the  first  Edward:  "Pass  it  not  by 
for  its  simplicity :  there  is  no  nobler  dust." 

EXERCISES  AT  BUFFALO. 

The  day  was  celebrated  by  the  Erie  County  Bar  Asso 
ciation  at  a  dinner  given  by  the  Association.  The  Presi 
dent  of  the  Association,  Adelbert  Moat,  in  a  brief  ad 
dress,  fittingly  introduced  the  speaker  of  the  occasion, 
W.  Bourke  Cockran,  of  New  York. 

Address  by  W.  Bourke  Cockran. 

If  there  be  any  one  capable  of  disputing  that,  aside 
from  the  establishment  of  Christianity,  the  foundation  of 
this  republic  was  the  most  memorable  event  in  the  his 
tory  of  man,  we  would  not  be  apt  to  seek  him  at  this 
board  or  to  find  him  in  this  country.  And  if  the  foun 
dation  of  this  government  be  the  most  momentous  human 
achievement  of  all  the  centuries,  then  clearly  the  appoint- 


405  New  York— Address  of  W.  Bourke  Cockran. 

ment  of  John  Marshall  to  the  Chief  Justiceship  of  the 
United  States  was  the  first  event  of  the  last  century  no 
less  in  the  magnitude  of  its  importance  than  in  the  order 
of  its  occurrence. 

To  the  judicial  career  whose  initial  stage  we  celebrate 

this  country  mainly  owes  its  independent  judiciary the 

unique  feature  of  our  political  system  —  the  distinctive 
contribution  of  American  democracy  to  the  civilization 
of  the  world  —  the  vital  principle  of  constitutional  free 
dom  —  on  which  depend  the  strength  which  this  govern 
ment  possesses,  the  fruit  which  it  has  borne,  the  cloudless 
prospect  which  it  enjoys. 

It  is  certainly  beyond  dispute  that  this  government, 
which  is  the  freest,  is  also  the  most  stable  in  the  world. 
During  the  period  of  its  existence  what  changes  have 
swept  over  the  earth,  what  upheavals  have  convulsed 
society ;  what  dynasties  have  been  established  and  over 
thrown;  what  empires  have  risen  and  fallen;  what  polit 
ical  enterprises  have  been  undertaken  and  abandoned ; 
what  constitutions  framed  in  high  hopes  have  perished 
in  disappointment  and  confusion  !  It  has  seen  the  Whig 
oligarchy,  which  ruled  England  for  a  century  an3  a  half, 
give  place  to  a  republic  preserving  the  outward  form  of 
monarchy  only  to  veil  the  democratic  character  of  its 
evolution.  It  has  seen  the  king  who  aided  these  colonies 
to  achieve  their  liberty  immolated  on  the  scaffold  in  the 
name  of  liberty,  and  France,  after  staggering  through 
anarchy  to  military  despotism,  sink  back  into  monarchy; 
and  after  again  overturning  thrones  and  stumbling  once 
more  into  imperialism,  while  groping  towards  republic 
anism  engage  in  a  third  attempt  to  establish  some  form 
of  constitutional  freedom. 

It  has  seen  Prussia  rise  from  the  ashes  of  defeat  and 


John  Marshall  Memorial.  406 

humiliation,  and  after  humbling  the  pride  of  the  Haps- 
burgs  assume  the  military  primacy  of  Europe  when  her 
king,  raised  to  imperial  dignity  on  the  bucklers  of  his 
triumphant  soldiery,  proclaimed  a  new  empire  of  Ger 
many  in  the  conquered  halls  of  Louis  the  Magnificent. 
It  has  seen  the  Eepublic  of  Venice  perish  in  its  age  and 
decay;  the  German  principalities  disappear  from  the 
banks  of  the  Ehine;  the  ancient  city  of  Leo  and  of 
Gregory  become  the  capital  of  a  new  kingdom,  and  Spain 
begin  to  recover  in  the  cultivation  of  her  own  lands  the 
prosperity  which  she  sacrificed  in  attempts  to  conquer 
other  lands.  It  has  seen  the  veil  of  darkness  and  igno 
rance  rent  in  the  East.  As  I  speak,  it  sees  the  forces  of 
Western  civilization  standing  in  the  battered  gateways 
of  Far  Cathay.  And  through  all  these  changes,  convul 
sions,  revolutions,  this  republic  stands  to-day,  as  it  went 
into  operation  one  hundred  and  twelve  years  ago,  un 
changed  in  any  of  its  essential  features,  except  that  its 
foundations  have  sunk  deeper  in  the  affections  of  the 
people  whose  security  it  has  maintained,  whose  pros 
perity  it  has  promoted,  whose  condition  it  has  blessed. 

To  wnat  must  we  attribute  this  stability  which  has 
maintained  our  government  unmoved  and  apparently 
immovable  on  solid  foundations  amid  the  upheavals  which 
have  engulfed  ancient  systems  ?  It  is  not  explained  by 
the  lofty  purpose  which  animated  its  founders,  because 
other  governments  conceived  in  equally  high  aspirations 
have  perished  at  the  first  attempt  to  put  them  in  practi 
cal  operation.  It  is  not  because  it  rests  on  a  written 
Constitution,  for  the  pathway  of  man  is  strewn  with  the 
wrecks  of  constitutional  experiments.  It  is  not  because 
our  Constitution  declares  certain  elementary  rights  of 
man  to  be  inviolable.  Its  provisions  in  this  respect  were 


407  New  York  — Address  of  W.  Bourke  Cockran. 

modeled  on  existing  institutions.  Their  very  language 
was  not  original.  In  terms  as  well  as  in  substance  they 
were  borrowed  from  other  charters  of  liberty.  The 
French  Constitution  of  1793  and  the  declaration  of  the 
rights  of  man,  which  was  made  a  part  of  it,  contained 
even  more  elaborate  provisions  for  the  safety  of  the  in 
dividual.  But  while  the  French  Constitution  was  mu 
nificent  in  its  promises  of  privileges  to  the  citizen,  the 
means  which  it  adopted  to  secure  them  were  inadequate 
and  indeed  puerile.  You  remember  how  that  remarkable 
document  sought  to  enforce  its  provisions  by  directing 
the  constitution  to  be  "  written  upon  tablets  and  placed 
in  the  midst  of  the  legislative  body  and  in  public  places," 
that  in  the  language  of  the  Declaration  "  the  people  may 
always  have  before  its  eyes  the  fundamental  pillars  of  its 
liberty  and  strength,  and  the  authorities  the  standard  of 
their  duties,  and  the  legislator  the  object  of  his  problem." 
The  Constitution  was  placed  "  under  the  guarantee  of  all 
the  virtues,"  and  the  Declaration  concluded  by  solemnly 
enacting  that  "  resistance  to  oppression  is  the  inference 
from  the  other  rights  of  man.  It  is  oppression  of  the 
whole  society  if  but  one  of  its  members  be  oppressed. 
When  government  violates  the  rights  of  the  people,  in 
surrection  of  the  people  and  of  every  single  part  of  it  is 
the  most  sacred  of  its  rights  and  the  highest  of  its  duties." 
The  framers  of  that  Constitution  made  the  fatal  mis 
take  of  assuming  that  to  declare  certain  privileges  the 
right  of  the  citizen  was  equivalent  to  placing  them  in  his 
possession.  In  practical  operation,  however,  it  was  soon 
found  that  the  sacred  right  of  insurrection  was  too  un 
wieldy  a  weapon  to  be  wielded  by  a  single  arm.  "  All 
the  virtues  "  proved  but  indifferent  guardians  for  a  Con 
stitution  assailed  by  all  the  passions.  A  mob  thirsting 


John  Marshall  Memorial.  408 

for  the  blood  of  a  victim  did  not  pause  to  read  the  meas 
ure  of  his  rights  on  tablets,  however  legibly  inscribed  or 
conspicuously  posted.  The  legislator  menaced  by  an  in 
furiated  populace  did  not  hesitate  to  seek  his  own  secu 
rity  in  the  sacrifice  of  the  lives  of  thousands  without  re 
gard  to  "  the  object  of  his  problem."  The  Constitution 
written  with  so  much  care,  acclaimed  with  so  much  en 
thusiasm,  adopted  with  so  much  hope,  was  suspended  even 
before  it  went  into  operation.  And  when  on  the  trial  of 
Danton  a  decree  was  passed  authorizing  juries  to  declare 
themselves  satisfied  of  the  guilt  of  persons  accused,  at  any 
stage  of  the  proceedings  against  them,  the  last  barrier  for 
the  protection  of  the  citizen  was  swept  away.  Frenzied 
patriots  and  plotting  demagogues  combined  to  produce  a 
wild  reign  of  terror  —  a  saturnalia  of  assassination.  Vio 
lence  became  synonymous  with  patriotism ;  to  be  accused 
was  to  be  condemned;  to  refuse  participation  in  murder 
was  to  become  its  victim ;  the  guillotine  became  the  altar 
of  popular  sovereignty  —  exacting  human  sacrifices  in 
ghastly  abundance ;  the  blood  of  the  best  and  of  the  worst ; 
of  the  most  patriotic  and  of  the  most  disaffected ;  of  the 
philanthropic  dreamer  and  of  the  brutal  cutthroat;  of 
both  sexes,  of  every  age,  and  of  all  conditions,  drenched 
the  soil  of  France  —  not  as  the  stern  ransom  of  liberty, 
but  as  a  mad  libation  to  anarchy  and  riot.  The  Consti 
tution  founded  to  protect  the  rights  of  man  perished  mis 
erably  after  violating  all  of  them,  and  republican  institu 
tions  became  discredited  throughout  Europe  for  a  century. 
The  distinction  between  our  republic  and  all  others  — 
which  has  made  it  a  bulwark  of  liberty  and  order,  while 
they  have  generally  become  engines  of  oppression  and 
sources  of  confusion  —  is  not  in  the  varied  extent  of  privi 
leges  promised  by  them,  but  in  the  different  means  which 


409  New  York  — Address  of  W.  Bourke  Cockran. 

they  provide  for  their  enforcement.  Our  Constitution 
was  not  committed  to  the  "  care  of  all  the  virtues,"  but 
to  the  courage,  wisdom  and  patriotism  of  an  independent 
judiciary.  The  whole  security  of  our  political  system 
rests  primarily  on  Article  III  of  the  Constitution,  which 
provides  that  the  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court  and  in  such  infe 
rior  courts  as  Congress  may  from  time  to  time  ordain  and 
establish;  and  that  the  judicial  power  shall  extend  to  all 
cases  in  law  and  equity  arising  under  the  Constitution 
and  laws  of  the  United  States  and  treaties  made  under 
their  authority;  to  controversies  between  two  or  more 
States,  between  a  State  and  citizens  of  another  State, 
and  between  citizens  of  different  States.  This  is  the 
corner-stone  of  our  political  structure,  but  not  the  force 
which  secures  this  government  firmly  on  its  foundations. 
The  experience  of  France,  and  indeed  of  this  country, 
shows  that  constitutional  provisions  of  themselves  are  but 
mere  admonitions,  always  disregarded  in  practice  un 
less  adequate  instrumentalities  are  provided  to  enforce 
them.  The  actual  character  of  a  constitutional  govern 
ment  depends  less  on  the  words  of  its  Constitution  than 
on  the  interpretation  which  they  receive.  It  was  not 
the  Constitution  as  drawn  up  by  its  framers,  but  the 
Constitution  as  interpreted  by  its  judges,  which  the  great 
est  Englishman  of  modern  times  described  as  the  most 
perfect  work  ever  struck  off  at  a  given  time  by  the  mind 
of  man.  Marshall  found  a  plan,  he  placed  it  in  effective 
operation ;  he  found  certain  declarations  in  favor  of  indi 
vidual  safety,  he  made  them  the  panoply  of  individual 
rights;  he  found  a  written  Constitution,  he  made  it  a 
constitutional  government. 

In  fixing  the  credit  due  to  Marshall's  judicial  career  it 


John  Marshall  Memorial.  410 

is  not  necessary  to  belittle  the  wisdom  and  foresight  of 
the  men  who  wrote  the  Constitution.  No  structure  can 
be  stronger  than  its  foundation.  John  Marshall  could 
never  have  raised  the  Supreme  Court  from  the  weakness 
in  which  he  found  it  to  the  power  and  majesty  in  which 
he  left  it  if  the  Constitution  had  not  afforded  him  an  ad 
equate  field  for  the  fullest  exercise  of  his  constructive 
genius.  It  would  be  superfluous,  in  this  presence,  to  dis 
cuss  or  even  to  mention  the  long  series  of  decisions 
through  which  he  made  the  promises  of  freedom  em 
braced  in  the  Constitution  actual  possessions  of  the  Amer 
ican  people.  It  is  enough  to  say  that  during  his  judicial 
service  of  thirty-four  years  in  deciding  many  controver 
sies  arising  in  every  part  of  the  Union  he  succeeded  in 
establishing  four  great  principles  which  underlie  our 
whole  constitutional  system  and  which  constitute  its 
main  support: 

First  —  The  supremacy  of  the  National  Government 
over  the  States  and  all  their  inhabitants. 

Second  —  The  supremacy  of  the  Constitution  over  every 
department  of  government. 

Third  —  The  absolute  freedom  of  trade  and  intercourse 
between  all  the  States. 

Fourth  —  The  inviolability  of  private  contracts. 

It  is  true  that  these  principles  are  now  regarded  as  ax 
ioms  of  civilized  society  too  obvious  to  be  questioned  in 
a  nation  capable  of  constitutional  government,  but  the 
universal  respect  in  which  they  are  held  is  entirely  due 
to  the  courage,  resolution  and  ability  with  which  Mar 
shall  asserted  and  maintained  them.  If  no  attempt  to 
violate  them  had  ever  been  made  by  the  States  or  by 
Congress,  no  occasion  would  have  arisen  for  the  decisions 
which  vindicate  them  so  clearly  that  no  respectable  au- 


411  New  York  — Address  of  W.  Bourke  Cockran. 

thority  can  now  be  found  to  challenge  them.  It  is  true, 
as  the  distinguished  chairman  of  this  banquet  says,  that 
the  supremacy  of  the  Constitution  over  Congress  and  the 
Executive  was  asserted  by  Judge  Paterson  in  a  charge  to 
a  jury  delivered  long  before  Marshall  assumed  the  ermine. 
It  is  equally  true  that  at  a  still  earlier  period  —  in  1788  — 
Alexander  Hamilton  devoted  a  number  of  the  Federal 
ist  —  I  think  it  was  the  78th  —  to  proving  that  it  was 
the  right  and  duty  of  the  judiciary  to  set  aside  a  law 
which  contravened  the  Constitution.  Indeed,  I  believe 
the  principle  had  been  asserted  in  some  of  the  colonies 
before  the  Eevolution.  But,  Mr.  Chairman,  there  is  noth 
ing  new  under  the  sun.  Marshall  did  not  discover  or  es-) 
tablish  any  new  principle  of  liberty,  nor  did  this  Consti-/ 
tution  embrace  one,  but  Marshall  did  devise  an  effective! 
plan  for  making  declarations  of  ancient  principles  prac-J 
tical  features  of  civil  government.  Man  can  no  more 
invent  a  new  principle  than  he  can  invent  a  new  force. 
The  limit  of  human  ingenuity  is  exhausted  when  new  de 
vices  are  found  for  utilizing  forces  which  are  eternal. 
The  force  which  moves  the  steam  engine  existed  since  the 
beginning  of  the  world,  but  it  never  was  available  for 
the  use  of  man  till  Watt  devised  an  effective  machine. 
Liberty  was  always  an  'aspiration  to  cherish,  but  never 
till  Marshall  made  this  Constitution  effective  did  liberty 
become  a  possession  to  enjoy. 

Marshall  brought  to  the  interpretation  of  the  Constitu 
tion  the  love  of  a  patriot,  the  wisdom  of  a  statesman,  and 
the  ardor  of  a  partisan.  He  had  followed  the  debates  of 
its  framers  in  Philadelphia;  he  had  successfully  urged 
its  adoption  in  the  Virginia  Convention  against  the  elo 
quence  and  overshadowing  authority  of  Patrick  Henry. 
Every  peril  which  it  escaped  in  the  progress  of  its  evolu- 


John  Marshall  Memorial.  412 

tion,  every  criticism  of  its  provisions,  every  apprehension 
expressed  of  its  operations,  were  signal  lights,  warning 
him  of  dangers  which  threatened  it  and  suggesting  pos 
sibilities  of  further  development  which  in  after  years  he 
improved  to  the  utmost. 

In  the  very  general  disposition  to  treat  the  Constitu 
tion  as  a  mere  treaty  between  independent  sovereignties 
which  might  be  disregarded  at  pleasure  by  any  of  them 
he  discerned  a  danger  against  which  he  warned  his  coun 
trymen  from  the  judgment  seat  almost  as  soon  as  he  as 
cended  it.  From  1804  in  the  cases  of  the  United  States 
against  Fisher  to  the  last  day  of  his  service  he  never 
missed  an  opportunity  to  assert  the  supremacy  of  the 
Federal  Government  on  all  matters  committed  to  it  by 
the  Constitution  as  the  vital  principle  of  our  national 
existence,  nor  to  show  by  irresistible  logic  that  to  ques 
tion  its  sovereignty  was  to  plot  its  destruction.  This 
was  the  doctrine  on  which  patriots  always  supported  the 
Union  —  for  which  Webster  contended  in  the  Senate  —  for 
which  armies  battled  during  four  long  years,  and  which 
was  finally  affirmed  on  the  battlefield  when  the  sword  of 
the  Confederacy  was  surrendered  to  the  triumphant 
forces  of  the  republic. 

In  the  opposition  expressed  in  the  Philadelphia  Con 
vention  to  establishing  United  States  courts  of  inferior 
jurisdiction  and  in  the  suggestion  that  the  enforcement 
of  the  Federal  Constitution  and  laws  should  be  confided 
to  the  State  courts,  he  detected  a  disposition  to  emascu 
late  the  Federal  judiciary  by  making  it  a  body  without 
limbs,  and  when  occasion  arose  in  1809  he  issued  that 
mandamus  to  Judge  Peters  which  made  the  subordinate 
courts  of  the  United  States  the  vigorous  and  effective 
hands  of  the  Constitution  —  enforcing  its  provisions  in 


413      ,..     New  York  —  Address  of  W.  Bourke  Cockran. 

every  locality  —  bringing  the  Federal  law  to  the  doorway 
of  the  citizen  —  maintaining  the  supremacy  of  the  United 
States  in  every  square  foot  of  their  territory — without 
interfering  with  the  power  of  the  State  to  deal  with  mat 
ters  concerning  itself  and  its  own  citizens,  except  to  ad 
minister  its  justice  according  to  its  own  laws  when  they 
were  invoked  by  a  stranger  against  a  resident.  And 
when  in  the  subsequent  case  of  Hunter's  Lessee  he  estab 
lished  the  right  of  the  Supreme  Court  to  review  any 
proceedings  of  a  State  tribunal  which  involved  a  question 
arising  under  the  laws  or  Constitution  of  the  United 
States,  he  converted  the  State  courts  from  possible  obsta 
cles  to  Federal  authority  into  additional  agencies  for  the 
enforcement  of  Federal  laws. 

In  the  proposal  so  strongly  urged  in  the  Philadelphia 
Convention  to  empower  the  judges  of  the  Supreme  Court 
to  advise  the  legislative  and  the  executive  departments 
in  the  discharge  of  their  functions  he  detected  an  appre 
hension  that  under  a  republican  form  of  government 
parliamentary  bodies  and  executive  officers  might  be  car 
ried  to  excesses  by  violent  gusts  of  popular  opinion,  and 
in  the  case  of  Marbury  against  Madison  he  quieted  that 
distrust  forever  by  assuming  for  the  judiciary  the  right 
and  the  duty  to  enforce  the  Constitution  against  any  at 
tempt  to  invade  it  by  any  other  department,  or  by  all 
the  other  departments  of  government  combined,  on  the 
complaint  of  any  citizen  whose  rights  might  be  imperiled 
by  the  encroachment. 

Freedom  of  trade  between  the  States  was  secured  when 
in  Gibbons  against  Ogden  the  jurisdiction  of  the  Federal 
Government  was  established  over  the  navigable  waters 
of  the  United  States,  whether  inland  rivers  or  harbors  of 
the  sea,  and  when  in  the  subsequent  case  of  Brown  against 


John  Marshall  Memorial.  414 

the  State  of  Maryland  —  which  might  be  called  the  orig 
inal  "  original  package  case  " —  it  was  held  that  the  State 
had  no  power  to  impose  any  tax  or  duty  by  way  of  license 
or  other  pretext  upon  the  products  of  other  States  seeking 
access  to  its  markets.  To  these  and  the  subsequent  de 
cisions  constituting  the  body  of  law  governing  interstate 
commerce  we  are  indebted  for  the  profound  peace  which 
reigns  between  the  States ;  for  if  one  State  had  been  al 
lowed  to  impose  discriminations  in  matters  of  trade  or 
communication  against  the  citizens  of  another,  each  impo 
sition  would  have  been  followed  by  reprisals  leading  in 
turn  to  fresh  retaliatory  measures,  until  a  state  of  com 
mercial  war  would  have  been  the  normal  relation  between 
all  the  States.  It  is  the  history  of  humanity  that  a  con 
flict  of  interests  is  usually  followed  by  a  conflict  of  arms. 

The  Dartmouth  College  case,  which  established  the  in 
violability  of  contracts,  was  an  industrial  bill  of  rights  to 
the  people  of  this  country.  It  has  proved  the  very  foun 
tain  of  the  prosperity  which  they  have  achieved  and  of 
the  greater  prosperity  which  awaits  them. 

It  is  surely  unnecessary  to  argue  in  this  presence  that 
on  the  sacredness  of  contracts  depends  the  industrial  co 
operation  of  man,  and  co-operation  is  the  mainspring  of 
industry.  For  who  would  work  and  toil  unless  he  felt 
that  he  could  exchange  the  product  of  his  labor  against 
the  commodities  produced  by  the  labor  of  others  upon 
conditions  of  his  own  making  ?  Who  would  sow  a  field, 
or  turn  a  single  furrow  with  the  plow,  or  swing  a  pick 
axe  in  the  bowels  of  the  earth,  or  shiver  to-night  upon 
the  front  platform  of  a  street  car,  if  he  doubted  the  pay 
ment  of  the  wages  which  he  had  contracted  to  receive, 
or  if  he  did  not  know  that  other  men  are  producing  the 
shoes,  and  the  clothes,  and  the  food  essential  to  his  ex- 


415  New  York— Address  of  W.  Bourke  Cockran. 

istence  and  which  they  will  gladly  exchange  for  the  pro 
ceeds  of  his  wages  pursuant  to  contracts  freely  made  be 
tween  them? 

While  the  whole  industrial  activity  of  man  depends 
upon  his  belief  in  the  fulfillment  of  contracts,  there  is 
often  a  strong  tendency  in  legislatures  and  governments 
to  repudiate  debts  or  obstruct  their  collection.  When, 
therefore,  Marshall  placed  the  obligation  of  contracts  be 
yond  the  power  of  any  State  to  disturb,  he  made  the  in 
dustry  of  this  country  the  most  prosperous  in  the  world 
by  making  its  fruits  the  most  secure. 

If  I  were  to  summarize  Marshall's  service  I  should  say 
that  on  the  solid  foundation  of  the  Constitution  he  made 
power,  justice,  peace  and  prosperity  the  four  great  pil 
lars  of  our  governmental  system  —  power  by  establishing 
the  sovereignty  of  the  General  Government  over  the 
States,  thus  making  it  the  strongest  nation  in  the  world ; 
justice  by  establishing  the  dominion  of  the  Constitution 
over  all  the  departments  of  government ;  peace  by  estab 
lishing  freedom  of  intercourse  between  all  the  States; 
prosperity  by  establishing  the  inviolability  of  private 
contracts.  The  decisions  of  Marshall's  successors,  with 
out  disturbing  these  pillars,  have  strengthened  them,  and 
the  stately  fabric  of  government  which  they  support. 

The  stability  of  the  Union  has  been  secured  as  much 
by  forbearance  in  refusing  to  exercise  powers  not  prop 
erly  belonging  to  it  as  by  firmness  in  enforcing  those  es 
sential  to  its  existence.  The  inviolability  of  contracts 
has  not  been  allowed  to  pervert  franchises  granted  for 
the  public  convenience  into  monopolies  beyond  the  power 
of  the  State  to  control.  The  right  of  every  citizen  to 
trade,  move  or  labor  everywhere  throughout  the  whole 
territory  of  the  United  States  on  equal  terms  with  all 


John  Marshall  Memorial. 

others  has  not  been  allowed  to  interfere  with  the  right 
of  each  State  to  protect  health,  order  and  morals  within 
its  limits  —  the  only  restriction  on  its  police  power  being 
the  requirement  that  every  exercise  of  it  must  apply 
equally  to  citizen  and  stranger  under  its  jurisdiction. 

It  is  perhaps  the  most  extraordinary  feature  of  our  po 
litical  system  as  it  is  the  most  impressive  tribute  to  Mar 
shall's  genius  that  the  power  of  the  judiciary  —  now  un 
questioned  —  to  fix  the  limits  of  its  own  authority  and 
the  authority  of  all  other  departments  rests  not  upon  any 
specific  provision  of  the  Constitution,  but  on  a  principle 
of  construction  first  announced  authoritatively  in  the  case 
of  Marbury  against  Madison.  The  approval  bestowed  on 
that  momentous  decision  and  on  every  subsequent  ampli 
fication  of  its  doctrine  has  been  so  universal  that  the  judi 
cial  department  has  been  encouraged  to  extend  the  buckler 
of  its  authority  over  an  ever-widening  field,  until  it  has 
become  the  dominant  force  in  our  national  life  —  the  one 
element  which  through  all  our  existence  has  steadily 
grown  in  power  and  beneficence.  Never  has  the  Supreme 
Court  exercised  its  supreme  power  of  setting  aside  a  law 
of  Congress  or  of  a  State  that  the  people  did  not  sustain 
its  course  with  substantial  unanimity.  With  the  exception 
of  the  Eleventh  Amendment,  there  is  not  in  the  history 
of  the  United  States,  or  of  any  State,  a  single  instance  in 
which  the  people  consented  to  a  constitutional  provision 
limiting  the  power  of  the  judiciary,  while  the  tendency 
everywhere  has  always  been  to  enlarge  it.  While  this 
respect  for  the  judiciary  remains  a  conspicuous  feature  of 
our  national  life  no  peril  to  our  institutions  can  ever 
become  serious. 

It  is  often  said,  and  I  think  with  truth,  that  the  close 
of  the  nineteenth  century  witnessed  a  decline  in  the  popu- 


417  New  York  —  Address  of  W.  Bourke  Cock  ran. 

larity  of  those  parliamentary  institutions  which,  at  its 
beginning,  were  universally  believed  to  be  the  sure  pan 
acea  for  all  social  or  economic  ills.  In  France,  in  Austria, 
in  Italy  and  in  Spain  legislative  chambers  have  sunk  into 
universal  contempt.  Even  in  England  the  House  of  Com 
mons  has  so  far  declined  in  popular  respect  that  the 
House  of  Lords  now  assumes  to  reject  its  measures  with 
out  fear  of  popular  condemnation.  In  the  present  tem 
per  of  the  English  people,  if  Edward  YII.  were  possessed 
of  real  abilities,  he  might  be  able  to  impose  his  authority 
on  both  houses.  If,  for  instance,  he  were  to  lift  his  voice 
now  for  justice  to  the  Boers  and  denounce  the  South 
African  war  as  a  conscienceless  manoeuvre  of  parliament 
ary  politicians  for  political  advantage,  I  believe  that  the 
conscience  of  the  country  would  sustain  him,  as  I  know 
the  public  opinion  of  the  world  would  applaud  him,  and 
Parliament  would  very  probably  be  compelled  to  follow 
him.  It  would  need  but  a  few  such  exercises  of  leader 
ship  to  make  his  authority  permanent  over  both  houses, 
for  obedience  is  largely  habit.  Indeed,  it  is  by  no  means 
impossible  that  the  importance  of  the  Crown,  which  be 
gan  to  decline  after  the  death  of  Elizabeth,  may  begin  to 
revive  after  the  death  of  Victoria.  In  this  county,  rep 
resentative  bodies  have  not  escaped  the  disrepute  which 
has  overtaken  them  in  other  lands.  With  us  corruption 
is  sometimes  attributed  to  Congress,  quite  generally  to 
State  legislatures,  universally  to  municipal  councils.  But 
in  our  government  there  is  one  department  untainted  by 
any  breath  of  suspicion,  to  which  the  people  are  so  pas 
sionately  attached  that  the  slightest  attempt  to  disturb 
its  independence  or  even  to  review  its  decisions  at  the 
ballot  box  would  be  the  ruin  of  the  political  party  sug 
gesting  it.  Where  Parliament  is  supreme,  corruption  of 
VOL.  I  — 27 


John  Marshall  Memorial.  418 

legislative  bodies  undermines  the  life  of  the  whole  State, 
for  when  the  omnipotent  source  of  power  itself  becomes 
corrupt,  all  the  streams  which  flow  from  it  must  be  tainted, 
and  laws  springing  from  greed  are  sure  to  be  adminis 
tered  for  the  plunder  and  oppression  of  the  people.  Under 
such  conditions  industry  languishes,  prosperity  withers, 
civilization  itself  is  imperiled.  But  under  our  demo 
cratic  government  the  right  of  the  citizen  to  come  and 
go  as  he  pleases,  the  right  to  enjoy  his  property,  to  ex 
change  the  product  of  his  industry  against  the  commodi 
ties  produced  by  others,  depend  not  upon  the  honesty  of 
the  legislature,  or  the  loyalty  of  the  executive,  but  upon 
the  virtue  and  independence  of  the  judiciar}r.  If  corrup 
tion  exists  in  this  country  it  can  only  affect  the  bestowal 
of  favors  by  the  government,  it  cannot  endanger  the  life, 
liberty  or  property  of  a  single  individual.  There  may  be 
partiality  —  corruption,  if  you  will  —  in  the  bestowal  of 
public  franchises,  of  public  offices  and  of  public  contracts, 
but  while  there  is  none  in  the  administration  of  justice, 
while  the  courts  remain  true  to  the  example  and  pre 
cepts  of  Marshall,  all  the  essential  rights  of  the  citizen 
are  as  secure  as  the  earth  under  his  feet  —  they  can  no 
more  be  invaded  than  the  stars  in  heaven  can  be  blotted 
from  his  gaze. 

One  hundred  years  after  the  establishment  of  our  Con 
stitution  what  purpose  expressed  in  its  preamble  remains 
to  be  accomplished —  what  hope  cherished  by  its  framers 
is  unfulfilled  ?  I  know  of  none.  Look  around  you  and 
tell  me  if  this  be  an  idle  boast.  Has  not  the  Union  been 
made  perfect  through  the  wisdom  of  the  great  magis 
trate  who  showed  its  necessity  and  the  blood  of  the  he 
roes  who  cemented  it?  Is  not  justice  firmly  established 
by  the  unquestioned  dominion  of  the  Constitution  ?  Is 


419  New  York  — Address  of  W.  Bourke  Cockran. 

not  domestic  tranquillity  absolutely  insured  since  perfect 
freedom  of  intercourse  and  trade  removes  all  provocation 
to  hostile  acts  or  feelings  between  the  States  ?  Is  not 
the  common  defense  abundantly  provided  for  by  the 
overwhelming  strength  of  a  populous  nation  whose  every 
inhabitant  would  die  for  the  integrity  of  its  soil  and  the 
glory  of  its  flag  ?  Has  not  the  general  welfare  been  pro 
moted  beyond  the  wildest  hopes  of  the  fathers  since 
the  security  of  property  encourages  industry  to  wring 
measureless  abundance  from  a  fruitful  soil  ?  Are  not  the 
blessings  of  liberty  secured  for  ourselves  and  our  poster 
ity  beyond  fear  of  invasion  or  danger  of  abridgment  by 
the  effective  protection  which  the  judiciary  casts  over 
the  essential  rights  of  every  citizen  ? 

But  the  authors  of  this  Constitution,  in  framing  Ar 
ticle  III,  builded  even  wiser  than  they  knew.  At  this 
moment  the  court  is  considering  the  gravest  question 
ever  submitted  to  a  judicial  tribunal  in  the  history  of 
mankind.  Within  a  few  days  it  must  decide  whether 
the  Government  of  the  United  States,  or  rather  whether 
two  of  its  departments,  can  govern  territory  anywhere 
by  the  sword,  or  whether  authority  exercised  by  officers 
of  the  United  States  must  be  controlled  and  limited 
everywhere  by  the  Constitution  of  the  United  States. 

I  do  not  mention  this  momentous  question  to  express 
the  slightest  opinion  upon  its  merits,  but  merely  that  this 
assemblage  of  judges  and  of  lawyers  may  realize  the  part 
which  the  judiciary  is  now  required  to  play  in  determin 
ing  the  influence  which  this  country  must  exercise  for- 
evermore  in  the  family  of  nations.  The  power  of  Con 
gress  to  acquire  territory  is  of  course  unquestioned,  but 
the  disposition  to  exercise  that  power  will  always  be 
controlled  by  the  conditions  under  which  newly-acquired 


John  Marshall  Memorial.  420 

territory  must  be  held,  and  these  conditions  the  court 
must  now  prescribe.  On  the  one  hand  it  may  hold  that 
wherever  power  is  exercised  under  the  Constitution  there 
the  limitations  of  the  Constitution  must  be  obeyed  —  that 
wherever  the  Executive  undertakes  to  administer,  or  Con 
gress  to  legislate,  there  the  judiciary  must  enforce  upon 
both  respect  for  the  organic  law  to  which  they  owe  their 
existence.  If  this  doctrine  be  established  it  is  clear  that 
no  scheme  of  forcible  conquest  will  ever  be  undertaken 
by  this  government,  for  the  simple  reason  that  there  can 
be  no  profit  in  such  an  enterprise.  On  the  other  hand 
the  court  may  decide  that  Congress  can  hold  newly-an 
nexed  territories  on  any  terms  that  it  chooses  —  that  it 
may  govern  them  according  to  the  Constitution  or  inde 
pendently  of  it  —  that  they  may  be  administered  to  es 
tablish  justice  among  the  governed  or  for  the  glory 
and  profit  of  the  governors.  If  it  be  held  that  govern 
ment  for  profit  can  be  maintained  under  the  authority  of 
the  United  States,  conceive  the  extent  to  which  it  may 
be  carried  and  the  consequences  which  it  may  portend. 
If  it  be  possible  to  maintain  two  forms  of  government 
under  our  Constitution,  it  is  possible  to  establish  twenty 
in  as  many  different  places.  Territory  may  be  annexed 
to  the  North,  to  the  South,  to  the  East  and  to  the  West. 
The  President  of  the  United  States  may  be  vested  with 
imperial  powers  in  one  place,  with  royal  prerogatives  in 
another,  and  perhaps  remain  a  constitutional  magistrate 
at  home.  He  may  be  made  a  military  autocrat  in  some 
South  American  state,  an  anointed  emperor  in  some 
Northern  clime,  a  turbaned  sultan  in  some  Eastern  island. 
Nay,  more,  Congress  can  move  itself  and  the  seat  of  gov 
ernment  from  Washington  to  some  newly-annexed  terri 
tory  governed  by  officers  of  its  own  creation,  subject  to 


421  New  York  —  Address  of  W.  Bourke  Cockran. 

its  own  unlimited  power,  and  thus  take  both  outside  the 
jurisdiction  of  the  Supreme  Court. 

Has  the  world  ever  before  seen  —  could  the  f ramers  of 
this  Constitution  have  conceived  —  a  bench  of  judges  ex 
ercising  such  a  power  amid  the  universal  submission  and 
approval  of  the  whole  people.  And  more  extraordinary 
than  all,  this  submission  remains  unanimous  though  the 
decision  of  the  court  may  seriously  affect  its  own  posi 
tion  in  the  structure  of  our  goverment.  For  if  it  be  held 
that  the  Constitution  does  not  extend  of  itself  over  newly- 
annexed  territory,  then  clearly  the  authority  of  the  court 
cannot  extend  to  it  except  by  the  action  of  Congress  and 
the  Executive.  If  the  authority,  that  is  to  say,  the  ex 
istence  of  the  court  in  any  part  of  the  territory  of  the 
United  States,  depends  upon  the  other  departments,  then 
it  is  idle  to  contend  that  it  is  an  independent  and  co 
ordinate  branch  of  the  government.  To  decide  that  the 
executive  and  legislative  departments  have  the  right  to 
govern  territory  outside  the  Constitution  the  court  must 
deliberately  renounce  the  importance  which  it  has  here 
tofore  enjoyed  and  accept  for  itself  an  inferior  place  in 
our  political  system. 

To  me  this  is  the  most  sublime  spectacle  ever  presented 
in  the  history  of  the  world.  Think  of  it !  A  war  has 
been  waged  with  signal  success,  vast  territory  has  been 
exacted  from  a  conquered  foe;  a  great  political  cam 
paign  has  been  fought  and  won  upon  the  policy  of  tak 
ing  this  territory  and  governing  it  at  the  pleasure  of  Con 
gress  and  the  Executive,  yet  if  the  court  should  hold  that 
what  the  Executive  has  attempted,  what  Congress  has 
sanctioned,  and  what  the  people  appear  to  have  ap 
proved  at  the  polls  is  in  contravention  of  the  Constitu 
tion,  not  one  voice  would  be  raised  to  question  the  judg- 


John  Marshall  Memorial.  422 

ment  or  to  resist  its  enforcement.  I  have  said  the  spec, 
tacle  is  sublime;  my  friends,  even  a  few  weeks  ago  it 
was  inconceivable.  Before  the  late  election  I  confess  I 
believed  and  said  that  the  success  of  the  present  adminis 
tration  would  be  interpreted  as  a  popular  indorsement 
of  its  foreign  policy  and  that  the  popular  verdict  would 
very  probably  be  made  to  exercise  a  strong  if  not  de 
cisive  influence  on  the  court.  I  admit  now  that  I  was 
mistaken.  It  is  evident  that  this  question  will  be  de 
cided  on  its  merits  without  the  slightest  attempt  to  co 
erce,  intimidate  or  influence  the  judges,  and  I  say  now 
with  all  frankness  that  whatever  may  be  the  judgment 
it  will  be  the  very  best  outcome  for  the  people  of  this 
country,  for  the  peace  of  the  world,  for  the  welfare  of 
the  human  race. 

I  cannot  tell  what  this  outcome  may  be,  but  I  know 
that  whenever  a  crisis  has  arisen  in  the  pathway  of  the 
republic,  the  statesmanship  of  the  common  people  has 
always  met  it  with  justice  and  solved  it  with  wisdom. 
Before  the  close  of  the  civil  war,  who  that  paid  attention 
to  the  utterances  of  journalists,  politicians  and  publi 
cists —  who  that  heard  the  famous  declaration  that  trea 
son  must  be  made  odious;  or  read  the  journalistic  demand 
for  punishments  disguised  under  pleas  for  precautions 
against  any  renewal  of  rebellion ;  or  listened  to  the  pop 
ular  songs  proclaiming  a  firm  purpose  to  "  hang  Jeff  Davis 
on  a  sour  apple  tree,"  could  have  realized  that  peace  would 
be  restored  without  the  infliction  of  a  single  penalty  or 
the  exaction  of  a  single  sacrifice  —  that  the  pacification 
of  the  country  would  be  accomplished  by  pardon  and  not 
by  punishment  —  and  that  five  years  after  the  end  of  the 
conflict  the  reconciliation  of  the  combatants  would  be  so 
perfect  that  victors  and  vanquished  would  alike  rejoice 


423  New  York  — Address  of  W.  Bourke  Cockran. 

at  the  result?  And  so,  my  friends,  while  no  man  can 
predict  the  solution  of  the  question  which  now  perplexes 
this  government  and  this  people,  the  whole  history  of  the 
United  States  forbids  us  to  fear  that  it  will  prove  an  in 
superable  obstacle  to  the  progress  of  liberty,  but  com 
mands  us  to  believe  firmly  and  implicitly  that  it  will 
become  a  stepping-stone  to  higher  achievements  from 
which,  under  the  Providence  of  God  and  the  wisdom  of 
the  judiciary,  this  republic  will  diffuse  the  light  of  justice 
still  more  widely  throughout  the  world. 

I  have  nothing  to  recant  of  what  I  said  on  the  hustings ; 
no  apology  to  make  for  my  course  during  the  last  elec 
tion.  Under  similar  circumstances  my  words  and  my 
actions  would  again  be  the  same ;  yet,  if  the  court  de 
cides  now,  as  I  hope  it  will,  that  the  Constitution  and  the 
Flag  are  inseparable ;  that  where  one  waves  the  other 
must  govern,  then,  indeed,  am  I  prepared  to  admit  freely 
and  cheerfully  that  the  people  in  deciding  as  they  did 
were  wiser  than  if  they  had  followed  my  advice.  For, 
from  my  point  of  view,  it  will  clearly  be  better  for  the 
peace  of  the  world  and  for  the  happiness  of  mankind  if 
it  be  established  now  that  the  American  people  can  never 
violate  justice  anywhere  than  if  it  had  been  decided  at 
the  ballot  box  last  November  that  this  generation  of 
Americans  had  no  disposition  to  perpetrate  a  single  act 
of  injustice  in  the  Eastern  seas. 

When  this  momentous  question  shall  have  been  decided, 
when  this  great  service  shall  have  been  rendered  to  civ 
ilization,  will  the  American  judiciary  have  fulfilled  its 
mission  as  an  independent  department  of  government? 
Shall  the  judges  hereafter  be  the  mere  arbiters  of  private 
disputes?  Will  they  no  longer  be  required  to  display  that 
constructive  capacity,  that  judicial  statesmanship  which 


John  Marshall  Memorial.  424 

has  proved  the  safety  of  our  Government  by  fixing  the  lim 
itations  within  which  its  power  is  absolute,  beyond  which 
it  may  not  pass  ?  Great  as  have  been  the  services  which 
the  American  Judiciary  have  rendered  already  to  civiliza 
tion,  I  do  not  believe,  my  friends,  that  the  wisest  man 
can  measure  the  contributions  which  it  will  make  to  the 
science  of  government  in  the  years  that  are  to  come. 
What  is  the  purpose  of  government  ?  I  believe  it  was 
Lord  Brougham  who  said  that  the  English  government 
with  all  its  ramifications,  its  king  and  its  officers  of  state, 
its  Houses  of  Parliament  and  its  courts  of  justice,  its 
lords,  its  commons,  and  its  judges,  its  armies  and  its 
navies,  all  culminated  in  bringing  twelve  good  men  into 
the  jury  box.  That  statement  is  striking  and  original, 
but  inadequate.  The  jury  is  but  an  incident, —  perhaps 
the  most  important  incident, —  but  still  merely  an  inci 
dent  of  government, —  not  its  ultimate  object.  The  ulti 
mate  aim  and  purpose  of  government  is  to  promote  the 
effective  cultivation  of  the  earth  that  by  an  increase  in 
the  volume  of  its  product  the  number  of  human  beings 
may  be  multiplied  that  can  be  supported  upon  its  sur 
face.  The  first  essential  of  abundant  production  is  the 
preservation  of  peace. 

The  American  judiciary  has  been  the  most  effective 
agency  ever  evolved  from  human  wisdom  for  the  vindi 
cation  of  justice,  and  justice  is  the  only  reliable  founda 
tion  of  peace.  By  establishing  peace  among  the  States 
it  has  obviated  the  necessity  for  standing  armies  and  in 
creased  immeasurably  our  national  prosperity  by  direct 
ing  every  pair  of  human  hands  to  the  productive  employ 
ments  of  industry,  diverting  none  to  the  destructive  and 
wasteful  enterprises  of  war.  Never  has  a  population  in 
creased  so  rapidly  while  every  increase  in  the  number  of 


425  New  York  — Address  of  W.  Bourke  Cockran. 

men  has  been  attended  by  a  still  greater  increase  in  their 
possessions.  The  gloomy  theory  of  Malthus  that  the 
tendency  of  population  was  to  grow  more  rapidly  than 
the  supply  of  food,  and  therefore  that  war,  pestilence, 
famine  and  vice  as  checks  to  population  were  inevitable 
conditions  of  human  life  has  been  refuted  and  exploded 
by  the  experience  of  this  country.  We  have  established 
beyond  all  doubt  that  the  food  supply  of  the  earth  is 
not  a  limited  quantity,  but  is  capable  of  measureless  in 
crease  —  that  the  earth  is  not  an  unnatural  mother  pro 
ducing  creatures  beyond  her  capacity  to  support,  but  a 
generous  mother  ready  to  yield  abundant  subsistence  to 
every  human  being  engendered  upon  her  bosom,  if  men 
will  but  approach  that  fountain  of  sustenance  in  peace 
and  industrial  co-operation.  Here  at  least  every  man 
produces  more  than  he  consumes,  and  as  his  surplus 
product  goes  into  the  common  fund,  it  widens  the  field  of 
employment  for  others.  Every  addition  to  our  popula 
tion  instead  of  being  an  additional  charge  upon  a  limited 
food  supply  is  a  source  of  additional  abundance.  If  there 
be  any  limit  on  the  power  of  the  soil  to  support  human 
beings  it  is  imposed  by  the  wickedness  or  folly  of  men, 
not  by  the  parsimony  of  nature.  To  support  a  popula 
tion  however  large,  growing  in  prosperity  as  it  grows  in 
numbers,  it  is  only  necessary  that  all  men  shall  be  al 
lowed  to  approach  the  earth  in  peace,  to  exercise  all  their 
faculties  in  its  cultivation,  without  wasting  any  of  their 
energies  in  mutual  conflict.  As  our  population  grows 
the  comforts  of  our  citizens  grow;  their  houses  are 
larger,  their  clothing  is  warmer,  their  food  is  more  abun 
dant,  their  books  are  of  higher  merit,  their  schools  are 
more  extensive,  their  hospitals  are  more  efficient,  the  pro 
ductive  power  of  their  hands  is  multiplied,  and  the  hor 
izon  of  their  hopes  is  widened. 


John  Marshall  Memorial  426 

The  dangers  to  peace  do  not  all  spring  from  foreign 
aggression,  nor  are  they  confined  to  domestic  insurrec 
tions.  A  new  peril  has  arisen  to  disturb  industry  born 
of  the  prosperity  which  it  creates.  The  division  of  the 
earth's  product  among  the  laborers  who  create  it  has  pro 
voked  conflicts  as  bitter  as  any  that  ever  arose  over  the 
division  of  the  earth's  surface  among  the  nations  which 
inhabit  it.  Industrial  disturbances  cannot  be  settled  by 
force  or  by  mere  enactment  of  statute  laws.  Between 
individuals  as  between  states,  peace  can  never  be  per 
manent  unless  it  is  built  upon  justice.  B}r  ascertaining 
the  true  economic  laws  governing  the  relations  of  men 
engaged  in  production,  and  by  applying  them  fearlessly 
and  impartially  to  controversies  as  they  arise,  the  crown 
ing  service  of  the  judiciary  will  be  rendered  —  the  final 
triumph  of  judicial  statesmanship  will  be  achieved.  I 
have  no  fear  that  this  consummation  is  impossible  or  ev6n 
remote.  Looking  back  over  the  history  of  this  country 
I  cannot  entertain  a  doubt  of  its  security  or  of  its  future. 
While  the  judicial  department  remains  the  depositary  of 
our  rights  and  liberties  —  the  ark  of  our  political  cove 
nant —  while  the  courts  remain  the  inviolable  sanctuary 
of  justice,  the  Constitution  will  remain  the  secure  founda 
tion  of  the  principles  established  by  Marshall,  and  this 
government  will  continue  to  be  the  temple  of  freedom, 
the  bulwark  of  order,  the  light  of  progress,  the  supreme 
monument  of  what  man  has  achieved,  the  inspiring  prom 
ise  of  the  boundless  future  that  awaits  him. 


STATE  OF  NEW  JERSEY. 

Marshall  Day  was  celebrated  in  New  Jersey  at  a  din 
ner  given  by  the  Camden  County  Bar  Association  at 
the  Library  of  the  Association  in  Camden.  The  arrange 
ments  were  made  by  a  committee  consisting  of  Schuyler 
C.  Wood  hull,  F.  Morse  Archer  and  S.  Stanger  Iszard. 
The  President  of  the  Association,  Benjamin  D.  Shreve, 
presided,  and  Mr.  Justice  Garrison,  of  the  Supreme  Court 
of  the  State,  acted  as  toastmaster.  An  introductory  ad 
dress  was  made  by  Attorney-General  Grey.  This  was 
followed  by  an  address  by  David  J.  Pancoast,  one  of  the 
Vice-Presidents  of  the  Association. 

Address  of  Samuel  H.  Grey. 

I  rise,  Mr.  President  and  gentlemen  of  the  Bar  Asso 
ciation,  to  drink  to  the  memory  of  John  Marshall,  the 
great  Chief  Justice,  whose  name  with  that  of  Lord  Mans 
field  is  synonymous  with  that  lofty  courage,  broad  states 
manship  and  enlightened  sagacity  which  characterize 
these  the  greatest  judges  the  world  has  yet  seen.  I  shall 
not  seek  to  trace  through  Marshall's  boyhood  days  those 
indications  of  the  character  which  he  later  developed;  it 
is  enough  to  say  that  from  his  mother  he  received  a  taste 
for  the  choicest  English  literature  and  that  the  whole  at 
mosphere  of  the  family  life  which  surrounded  him  was 
impregnated  with  the  best  literary  spirit  of  the  age.  At 
twenty-two  he  was  a  captain  in  the  Revolutionary  Army, 
and  at  this  earlv  age  he  was  distinguished  for  that  excel- 


John  Marshall  Memorial.  428 

lent  judgment  and  marvelous  common  sense  which  al 
ways  characterized  him.  He  was  in  battle  at  Trenton, 
at  Germantown,  at  Monmouth  and  at  Stony  Point,  and 
bore  himself  so  well  that  he  was  brought  into  personal 
contact  with  Washington  (upon  whose  staff  he  served), 
as  well  as  with  other  eminent  and  distinguished  soldiers 
in  that  great  contest,  which  changed  the  thoughts  of 
men  from  serving  the  King  with  loyalty  to  serving  the 
States  with  devotion.  A  revolution  indeed  which  gave 
to  all  men  everywhere  a  new  aspiration  and  awakened  a 
new  passion  in  a  desire  for  liberty  regulated  by  law. 
After  the  capture  of  Cornwallis  had  practically  ended 
the  Eevolutionary  struggle  he  married  and  took  up  at 
Richmond  the  practice  of  that  profession,  the  noblest  of 
them  all  in  its  vast  possibilities  for  the  good  of  men,  in 
which  he  was  to  excel  and  become  the  great  exemplar 
of  all  that  was  best  and  wisest  in  the  administration  of 
the  law.  The  elements  of  leadership  were  born  in  him 
and  he  soon  manifested  them  and  became,  while  still  a 
very  young  man,  the  leader  of  the  Bar  of  the  great  State 
of  Virginia,  and  his  subsequent  selection  as  a  member  of 
the  State  Convention  was  but  a  just  recognition  of  his 
place  among  those,  few  indeed  in  number,  who  are  leaders 
in  the  almost  untrodden  paths  reserved  for  the  truly  great. 
He  supported  the  Federal  Constitution  with  a  lucidity  of 
statement  and  a  convincing  logic  which  illuminated  the 
subject  and  demonstrated  the  soundness  of  his  views. 
After  the  adoption  of  the  Constitution,  he,  with  Gerry 
and  Pinckney,  was  sent  to  France,  where  he  acquitted 
himself  so  admirably  that  upon  his  return  he  was  received 
with  the  utmost  enthusiasm.  He  afterward  ran  for  Con 
gress  at  the  personal  request  of  Washington,  and  later, 
during  the  administration  of  Adams,  he  became  a  mem- 


429  New  Jersey — Address  of  David  J.  Pancoast. 

ber  of  his  Cabinet.  He  was  appointed  Chief  Justice  upon 
the  resignation  of  Chief  Justice  Ellsworth  in  November, 

1800,  and  commissioned  for  that  great  office  January  31, 

1801.  On  the  4th   of  February,  1801,   he  was  sworn 
in  as  Chief  Justice  of  the  Supreme  Court  of  the  United 
States.      He  was,  and  is,  facile  princeps.      Chiefest  of 
all  that  splendid  body  of  jurists  which  have  heretofore 
adorned  that  great  tribunal,  unparalleled  in  the  world 
in  the  extent  and  character  of  its  jurisdiction,  before 
which  the  nation  and  its  meanest  citizen  stand  on  equal 
ground.     The  majesty  of  the  one  does  not  raise  it  above 
the  law;  the  insignificance  of  the  other  does  not  leave 
him  beneath  its  protection. 

Let  us  drink,  sir,  to  the  memory  of  this  great  Judge, 
who  so  interpreted  and  applied  the  principles  of  our  or 
ganic  law  that  it  rests  as  firmly  upon  the  political  system 
of  our  country  as  the  mountains  stand  upon  our  soil,  for 
ever  pointing  the  way  toward  eternal  liberty  and  per 
petual  union. 

Address  of  David  J.  Pancoast. 

Upon  the  resignation  of  Chief  Justice  Ellsworth,  Mar 
shall  did  not  seek  his  place,  but,  on  the  contrary,  advised 
President  Adams  to  appoint  Justice  Paterson.  of  New 
Jersey,  who  had  been  on  the  Supreme  Court  bench  for 
some  years,  and  is  well  known  to  all  New  Jersey  lawyers 
as  one  of  our  early  Governors  and  Chancellors,  and  the 
compiler  of  Paterson's  laws,  published  in  1800.  Instead 
of  promoting  Paterson,  Adams,  following  his  own  inclina 
tion,  on  the  31st  of  January,  1801,  just  before  the  close 
of  his  term,  appointed  Marshall,  who  was  then  Secretary 
of  State,  Chief  Justice  in  Ellsworth's  place.  On  the  4th  of 


John  Marshall  Memorial.  430 

February  following,  just  a  century  ago,  Marshall  quietly, 
and  in  an  unceremonious  manner,  took  the  oath  of  his 
new  office,  and  entered  upon  his  judicial  duties  at  the 
first  session  of  the  court  held  at  Washington,  unconscious 
of  the  great  importance  of  the  event  to  his  countrymen 
in  the  centuries  to  follow.  Before  this  appointment,  he 
had  been  offered  and  declined  the  offices  of  Attorney- 
General,  Associate  Justice,  Secretary  of  War  and  Minis 
ter  to  France.  His  predecessors  in  the  great  office  of 
Chief  Justice  were  Ellsworth,  Rutledge  and  Jay,  in  the 
order  named.  At  the  time  he  was  made  Chief  Justice 
he  was  in  the  prime  of  life,  being  only  forty -five.  Some 
criticism  has  been  made  of  his  conduct,  after  his  appoint 
ment  to  the  Supreme  Court,  in  remaining  temporarily  in 
Adams's  cabinet  and  industriously  assisting  him  in  mak 
ing  new  appointments  to  Federal  offices  that  should  have 
been  left  to  Jefferson's  incoming  administration,  espe 
cially  in  view  of  Jefferson's  assurance  that  Federalists 
would  not  be  removed  or  superseded  without  good  and 
sufficient  cause.  It  is,  however,  but  just  to  the  memory 
of  Marshall  to  say  that  the  facts  upon  which  this  criticism 
rests  are  disputed. 

The  appointment  of  Marshall  as  Chief  Justice  was  one 
of  the  dying  efforts  of  the  Federal  party  to  perpetuate 
its  loose  construction  principles;  but  it  was  not  without 
wholesome  effect,  as  subsequent  events  in  the  Supreme 
Court,  under  Marshall's  leadership,  proved.  It  gave  the 
judicial  department  of  the  Federal  Government  a  Feder 
alist  or  free  movement  that  has  finally  molded  the  Con 
stitution  into  its  present  acceptable  form. 

In  February,  1801,  near  the  end  of  the  Tilth  Congress, 
the  Federalists,  to  further  intrench  themselves  in  the  ju 
dicial  department,  passed  an  act  creating  new  Federal 


431  New  Jersey — Address  of  David  J.  Pancoast. 

courts,  which  gave  President  Adams  the  appointment  of 
sixteen  new  judges,  whose  commissions  Adams  made  out 
and  delivered  just  before  the  expiration  of  his  term. 
These  appointments  were  by  the  anti-Federalists  deris 
ively  called  the  "  Midnight  Judges." 

Jefferson  did  not  like  Marshall  either  politically  or  per 
sonally,  but,  recognizing  his  great  ability,  invited  him  to 
remain  in  his  Cabinet  until  his  successor  should  be  se 
lected  ;  and  at  the  same  time  denounced  the  appointment 
on  March  3d  of  the  midnight  judges  and  other  officials, 
by  President  Adams,  without  any  censure  of  Marshall, 
who  was  said  by  some  to  have  been  employed  in  the 
scheme  of  filling  all  vacant  offices  with  Federalists  at  the 
last  moment  of  Adams's  administration.  Upon  his  eleva 
tion  to  the  bench  the  degree  of  LL.  D.  was  conferred  upon 
him  by  Princeton  College. 

Marshall's  appointment  to  the  position  of  Chief  Jus 
tice  was  the  beginning  of  a  new  era  in  the  history  of 
government  and  constitutional  law.  ISTo  government  had 
ever  before  been  established  by  the  people  concerned,  in 
which  the  sovereign  powers  were  divided  into  three  equal 
and  co-ordinate  departments  —  legislative,  judicial,  and 
executive;  and  it  remained  to  be  seen  whether  this  dis 
tribution  and  balancing  of  powers  would  lead  to  har 
mony  or  confusion;  whether  the  government  so  estab 
lished  would  be  perpetuated  in  order  and  peace  or  speedily 
dissolve  and  end  in  anarchy  and  war,  and  be  succeeded 
by  a  stronger  form  of  government  with  the  sovereign 
powers  confined  to  fewer  hands,  after  European  models. 
Virgin  America  was  the  place  and  Marshall's  day  the 
time  for  this  great  trial  in  the  experiment  of  republican 
institutions,  based  upon  the  equal  rights  of  all  men  before 
the  law. 


John  Marshall  Memorial.  432 

The  force  and  effect  of  the  judicial  department  on  the 
future  of  the  government  was  yet  to  be  determined; 
whether  it  was  to  play  an  obsequious  or  inferior  part  in 
the  scheme  under  the  Constitution,  or  take  and  keep  its 
high  rank  as  one  of  the  three  equal  powers  of  govern 
ment,  was  to  be  settled ;  and  very  much  at  the  start  de 
pended  upon  the  composition  and  complexion  of  the 
Supreme  Court,  whose  function  was  to  declare  the  law 
relating  to  differences  between  States,  and  between 
citizens  of  different  States,  and  as  to  treaties,  acts  of 
Congress,  and  the  powers  of  the  Executive  under  the 
Constitution. 

Before  the  adoption  of  the  Constitution,  no  court  in 
the  civilized  world  had  ever  been  possessed  of  such  vast 
jurisdiction  and  authority.  The  power  of  the  judicial 
department  of  the  government  to  define  the  limits  of 
the  fundamental  written  law  was  a  novelty  in  govern 
ment  which  the  rest  of  the  civilized  world  looked  upon 
with  wonder  and  amazement,  and  with  the  expectation 
of  its  speedy  failure,  inspired  by  the  wish  that  it  would 
not  succeed.  Marshall,  therefore,  as  the  head  of  the  court, 
had  an  unexampled  opportunity  to  do  a  great  service  to 
his  country  and  to  mankind,  which  his  patriotism  and 
his  genius  for  the  law  enabled  him  to  embrace  and 
thereby  enroll  his  name  on  the  scroll  of  fame  not  below 
that  of  any  other  judge  or  jurist  in  the  history  of  the 
world. 

Ex-President  Adams,  in  his  old  age,  told  Edward  C. 
Marshall,  the  youngest  son  of  the  Chief  Justice,  that  his 
gift  of  John  Marshall  to  the  people  of  the  United  States 
was  the  proudest  act  of  his  life.  Marshall  once  speaking 
of  himself  told  his  son  that  he  preferred  to  be  Chief  Jus 
tice  to  being  President.  It  is  to  be  hoped  for  the  good  of 


433  New  Jersey — Address  of  David  J.  Pancoast. 

the  bench  and  the  country  that  all  future  Chief  Justices 
will  entertain  the  same  patriotic  and  noble  sentiment. 

He  took  hold  of  the  judicial  work  of  his  court  with 
the  hand  of  a  master,  and  he  guided  it  with  such  learn 
ing,  probity  and  wise  discrimination  through  all  the  in 
tricate  and  doubtful  labyrinths  of  the  law  as  to  elevate 
and  keep  the  court,  during  his  judicial  career,  on  the 
high  plane  intended  for  it  by  the  framers  of  the  Consti 
tution. 

It  was  fortunate  for  the  Supreme  Court  and  for  con 
stitutional  law  that  Marshall  was  a  Federalist,  and  not 
in  sympathy  with  Jefferson's  strict  constructionist  ideas, 
else  the  former  might  have  molded  the  law  to  suit  the 
political  views  and  policy  of  the  administration  of  the 
latter,  and  placed  the  court  under  the  domination  of 
the  Executive  Department  —  a  thing  subversive  of  that 
independence  requisite  to  the  proper  working  of  the 
constitutional  scheme  of  our  government. 

As  a  judge,  Marshall  was  not  so  much  distinguished 
for  his  judicial  learning,  that  is,  knowledge  of  cases  and 
mere  book  law,  as  for  his  clear  comprehension-  of  funda 
mental  legal  principles  and  of  their  appropriate  applica 
tion  to  any  given  case.  Story,  his  associate  on  the  bench, 
was  noted  for  his  great  legal  erudition  and  knowledge  of 
authorities  and  acquaintance  with  books;  and  it  is  said 
that,  in  working  together  on  a  case,  Marshall  would  not 
infrequently  state  the  principles  that  should  govern  its 
determination  and  leave  Story  to  furnish  the  authorities. 
Story  once  said  of  him,  "  that  he  readily  evolved  the  true 
point  of  the  case,  even  when  it  was  manifest  that  he 
never  before  had  caught  even  a  glimpse  of  the  learning 
upon  which  it  depended."  He  was  not  naturally  a  labori 
ous  student.  He  loved  to  work  in  the  broad  field  of  rea- 
VOL.  I  —  28 


John  Marshall  Memorial.  434 

soning  and  generalization  rather  than  in  the  cramped  and 
narrow  bounds  of  mere  case-law  founded  upon  dusty 
precedents. 

The  learned  Pinkney  of  Maryland,  after  listening  to 
the  reading  of  several  of  Marshall's  opinions,  said :  "  He 
was  born  to  be  a  Chief  Justice  in  any  country  in  which 
he  lived.'*  It  has  been  said  of  him  by  another  that  he 
"  was  a  judge  solicitous  to  hear  arguments  and  reluctant 
to  decide  cases  without  them."  How  unlike  some  later- 
day  judges,  who  seem  to  imagine  that  they  cannot  be 
informed  or  instructed  by  the  argument  of  counsel,  and 
listen  to  it  as  though  it  were  a  thing  to  be  tolerated,  but 
not  in  the  least  degree  to  be  encouraged. 

Marshall  had  the  gentleness  and  diffidence  that  marks 
the  truly  great  mind.  It  has  been  said  that  he  never 
made  an  enemy.  He  presided  over  the  court  during 
the  administrations  of  John  Adams,  Thomas  Jefferson, 
James  Madison,  James  Monroe,  John  Quincy  Adams 
and  Andrew  Jackson  —  a  period  of  thirty-four  years ; 
and  his  judicial  labors  are  recorded  in  thirty-four  vol 
umes,  commencing  with  1st  Cranch  and  ending  with  9th 
Peters.  .  .  . 

In  the  trial  of  Burr  for  his  alleged  treasonable  practices 
in  his  Utopian  attempt  to  found  a  Southwestern  Empire, 
Marshall  held  that  he  was  entitled  to  a  subpmna  duces 
tec-urn  for  President  Jefferson.  The  propriety  and  legality 
of  the  Chief  Justice's  ruling  on  this  point  has  not  been 
universally  accepted,  but  his  decision  to  the  effect  that 
Burr  was  not  technically  guilty  as  charged,  under  the 
facts  proved,  has  been  generally  received  as  entirely 
sound.  While  what  he  did  seemed  to  imply  that  he  was 
against  Jefferson  and  for  Burr,  as  he  once  was  in  politics, 
yet,  as  a  matter  of  fact,  he  simply  did  with  true  judicial 
courage  what  he  thought  was  right  and  according  to  law. 


435  New  Jersey — Address  of  David  J.  Pancoast. 

Marshall,  at  the  solicitation  of  his  associate,  Judge 
Bushrod  Washington,  to  whom  General  Washington  be 
queathed  all  his  papers,  wrote  the  life  of  Washington,  at 
an  inopportune  time  and  under  unfavorable  circumstances. 
The  work,  which  was  published  in  several  volumes,  the 
first  of  which  appeared  in  1804,  was  not  generally  well 
received,  and  did  not  add  either  to  the  fame  of  Washing 
ton  or  that  of  its  author.  It  was  labor  done  out  of  his 
chosen  field  and  largely  lost  both  to  himself  and  to  the 
world.  It  did  this  good,  however:  it  collected  and  pre 
served  a  great  many  facts  in  relation  to  Washington 
which  have  been  useful  to  later  historians. 

He  was  in  the  Constitutional  Convention  for  the  adop 
tion  of  a  new  Constitution  for  the  State  of  Yirginia,  in 
1830.  With  him  in  that  convention  were  many  distin 
guished  men,  including  Madison  and  Monroe,  with  the 
latter  of  whom  he  attended  school  in  his  boyhood  days, 
all  three  aged  and  venerable  in  appearance.  A  writer  of 
the  times,  referring  to  Marshall's  presence,  said:  "  When 
ever  he  spoke,  which  was  seldom,  and  only  for  a  short 
time,  he  attracted  great  attention.  His  appearance  was 
revolutionary  and  patriarchal;  tall,  in  a  long  surtout  of 
blue,  with  a  face  of  genius  and  an  eye  of  fire."  In  the 
convention  he  acted  as  moderator,  and  on  questions  which 
brought  out  serious  differences  of  opinion  he  led  the  way 
to  harmony  by  suggesting  a  compromise  on  middle  and 
conservative  ground  that  all  could  agree  upon.  In  one 
of  his  speeches  he  said,  in  the  spirit  of  moderation,  con 
cession  and  compromise  characteristic  of  him:  "  Give  me 
a  constitution  that  shall  be  received  by  the  people;  a 
constitution  in  which  I  can  consider  their  different  inter 
ests  to  be  duly  represented,  and  I  will  take  it  though  it 
may  not  be  that  I  most  approve."  In  his  remarks  upon 


John  Marshall  Memorial.  436 

the  question  of  the  courts  to  be  provided  for,  he  said: 
"The  greatest  scourge  an  angry  heaven  ever  inflicted 
upon  an  ungrateful  and  sinning  people  was  an  ignorant, 
a  corrupt  or  a  dependent  judiciary."  He  was  at  this  time 
about  seventy-five  years  old,  and  though  somewhat  en 
feebled  in  body,  his  mind  was  unimpaired  and  active,  and 
he  continued  ably  to  discharge  his  judicial  duties. 

His  last  judicial  utterance  was  in  the  important  case  of 
Mitchel  and  others  v.  The  United  States,  involving  the 
rights  and  titles  of  the  Indian  tribes  to  lands  in  Florida, 
9th  Peters,  723,  January  term,  1835.  A  motion  for  a  con 
tinuance  of  the  case  on  the  part  of  the  Government  hav« 
ing  been  made,  Marshall,  then  about  eighty  years  of  age, 
ruled  upon  it,  and  in  part  spoke  as  follows:  "The  court 
has  taken  into  its  serious  and  anxious  consideration  the 
motion  made  on  the  part  of  the  Government  to  continue 
the  cause  of  Mitchel  v.  The  United  States  to  the  next 
term.  Though  the  hope  of  deciding  causes  to  the  mutual 
satisfaction  of  parties  would  be  chimerical,  that  of  con 
vincing  them  that  the  case  has  been  fully  and  fairly  con 
sidered,  that  due  attention  has  been  given  to  the  argu 
ments  of  counsel,  and  that  the  best  judgment  of  the 
court  has  been  exercised  on  the  case,  may  be  sometimes 
indulged  —  even  this  is  not  always  attainable.  In  the 
excitement  produced  by  ardent  controversy,  gentlemen 
view  the  same  object  through  such  different  media  that 
minds  not  infrequently  receive  therefrom  precisely  oppo 
site  impressions.  The  court,  however,  must  see  with  its 
own  eyes  and  exercise  its  own  judgment,  guided  by  its 
own  reason." 

This  last  deliverance  by  word  of  mouth,  on  the  spur  of 
the  moment,  showed  that  advanced  age  had  not  to  any 
appreciable  extent  beclouded  or  enfeebled  his  lofty  intel- 


437  New  Jersey — Address  of  David  J.  Pancoast. 

lect.  With  that  case  his  life  work  was  done,  and  the 
great  book  of  life  was,  as  to  him,  soon  to  be  closed  with 
a  record  of  his  remarkable  career. 

Garfield  said  of  him:  "He  found  the  Constitution  a 
paper  and  he  made  it  a  power."  His  contemporaries 
were  Chief  Justices  Kenyon,  Ellenborough,  Tenterden 
and  Denman,  and  Lord  Chancellors  Elclon,  Erskine, 
Lyndhurst  and  Brougham;  but  he  borrowed  nothing 
from  them.  He  was  made  illustrious  by  the  light  of  his 
own  intellect.  He  interpreted  and  gave  form  and  power 
to  a  written  constitution  that  was  wholly  unknown  to 
English  jurisprudence.  The  rise  and  growth  of  our  na 
tion  has  developed  many  able  men,  but  no  one  greater 
than  Marshall,  who,  as  soldier,  lawyer,  legislator,  states 
man,  diplomat  and  jurist,  filled  all  his  different  offices 
with  great  credit  and  honor  to  himself,  advantage  to  his 
country  and  to  the  satisfaction  of  his  countrymen. 

On  the  6th  day  of  July,  1835,  at  Philadelphia,  in  his 
eightieth  year,  after  an  illness  of  but  a  few  months,  he 
died  peacefully,  without  a  struggle,  at  the  hour  of  six 
o'clock  in  the  evening,  near  set  of  sun,  a  fitting  time  for 
the  close  of  such  a  beautiful  and  useful  life.  May  we,  as 
members  of  the  profession  of  the  law,  regard  and  vener 
ate  him  as  a  model  to  be  imitated,  and  from  his  charac 
ter  and  works  learn  a  useful  lesson  to  help  us  more  suc 
cessfully  to  deal  with  the  complex  problems  of  a  lawyer's 
life. 

His  chief  monument  is  in  the  lasting  character  of  his 
judicial  labors,  to  which  every  American  lawyer  and 
citizen  may  point  with  national  pride  through  the  com 
ing  centuries,  so  long  as  constitutional  law  and  repub 
lican  government  shall  survive  in  our  free  land.  His 
brethren  of  the  Supreme  Bench  inscribed  to  his  memory 


John  Marshall  Memorial.  438 

a  brief  obituary,  which  appears  in  the  preface  of  the 
10th  volume  of  Peters'  Reports,  and  is,  in  part,  as  fol 
lows  :  "  His  private  virtues  as  a  man,  and  his  public  serv 
ices  as  a  patriot,  are  deeply  inscribed  in  the  hearts  of  his 
fellow-citizens.  His  extensive  legal  attainments,  and  pro 
found,  discriminating  judicial  talents,  are  universally  ac 
knowledged.  His  judgment  upon  great  and  important 
constitutional  questions  affecting  the  safet}7,  tranquillity 
and  permanency  of  the  government  of  his  beloved  coun 
try,  his  decisions  on  international  and  general  law,  dis 
tinguished  by  their  learning,  integrity  and  accuracy,  are 
recorded  in  the  reports  of  the  cases  adjudged  in  the  Su 
preme  Court  of  the  United  States,  in  which  he  presided 
during  a  period  of  thirty-four  years.  As  long  as  the  Con 
stitution  and  laws  shall  endure  and  have  authority,  these 
will  be  respected,  regarded  and  maintained." 

No  such  spontaneous  tribute  of  affection  and  respect 
has  ever  before  in  the  history  of  the  world  been  paid  to 
a  judge  or  jurist  as  that  which  is  being  paid  to-day  to 
the  character  and  memory  of  Chief  Justice  Marshall 
throughout  this  great  nation  of  seventy-six  millions  of 
people;  and  it  is  one  of  the  signs  of  the  healthful  life  of 
the  Republic.  May  it  long  live  to  enjoy  the  blessing 
that  he  conferred  upon  it  as  the  greatest  expounder  of 
its  laws. 


COMMONWEALTH  OF  PENNSYLVANIA. 

The  centennial  anniversary  of  the  elevation  of  John 
Marshall  to  the  office  of  Chief  Justice  of  the  Supreme 
Court  of  the  United  States  of  America,  Monday,  Febru 
ary  4, 1901,  was  celebrated  in  the  city  of  Philadelphia, 
under  the  auspices  of  the  Law  Association  of  Philadel 
phia,  the  Lawyers'  Club  of  Philadelphia,  the  Pennsylva 
nia  Bar  Association  and  the  Law  School  of  the  University 
of  Pennsylvania. 

The  following  is  mainly  taken  from  the  official  relation 
of  the  proceedings,  separately  published,  with  an  excel 
lent  photogravure  of  the  Inman  portrait  of  Marshall : 

At  a  meeting  of  the  Law  Association  of  Philadelphia, 
held  October  2,  1900,  the  following  resolutions  were 
adopted : 

Resolved,  That  a  committee  of  five  be  appointed  by  the  Chancellor 
to  provide  for  a  suitable  observance,  on  February  4,  1901,  of  the  cen 
tennial  anniversary  of  the  elevation  of  John  Marshall  to  the  office 
of  Chief  Justice  of  the  United  States;  and 

Resolved,  That  the  State  Bar  Association,  the  Lawyers'  Club  of 
Philadelphia,  and  the  other  Bar  Associations  throughout  the  State 
and  members  of  the  Bar  in  general  be  invited  to  unite  with  this  As 
sociation  in  carrying  out  the  object  of  the  above  resolution. 

The  Chancellor  appointed  the  following  gentlemen 
members  of  that  committee:  John  Cadwalader,  Esq., 
Chairman;  Hon.  Wm.  W.  Wiltbank,  George  Tucker 
Bispham,  Esq.,  Wm.  Brooke  Kawle,  Esq.,  Alexander 
Simpson,  Jr.,  Esq. 

Subsequently   the  committee   was  increased  to  nine 


John  Marshall  Memorial.  440 

members,  and  Messrs.  Henry  Flanders,  William  H.  Staake, 
Edward  P.  Allinson  and  Hampton  L.  Carson  were  added 
to  the  Committee. 

In  response  to  this  resolution,  the  Lawyers'  Club  of 
Philadelphia  appointed  the  following  committee:  Hon. 
C.  Y.  Audenried,  John  K.  Eead,  Esq.,  Richard  C.  Dale, 
Esq.,  John  Marshall  Gest,  Esq.,  Joseph  DeF.  Junkin,  Esq. 

The  Pennsylvania  Bar  Association :  Hon.  John  B.  Mc- 
Pherson,  Victor  Guillou,  Esq.,  D.  T.  Watson,  Esq.,  Hon. 
W.  U.  Hensel,  C.  La  Rue  Munson,  Esq.,  J.  B.  Colahan, 
Jr.,  Esq. 

The  Faculty  of  the  Law  School,  University  of  Penn 
sylvania:  Hon.  George  M.  Dallas,  Prof.  William  Draper 
Lewis,  Prof.  John  W.  Patton, —  as  members  of  "  a  joint 
committee  upon  the  suitable  observance  of  the  Centen 
nial  Anniversary  of  the  elevation  of  John  Marshall  to 
the  office  of  Chief  Justice  of  the  United  States." 

At  a  meeting  of  the  Committee,  held  on  the  15th  day 
of  October,  1900,  it  was 

Resolved,  That  the  Chairman  of  the  Committee  be  requested  to 
confer  with  Mr.  Justice  Mitchell  of  the  Supreme  Court  of  Pennsylva 
nia,  and  invite  him  to  deliver  an  address  upon  the  occasion. 

At  a  meeting  of  the  Committee  held  on  the  30th  day 
of  October,  1900,  the  chair  announced  the  following  sub 
committee  to  formulate  a  programme  or  order  of  exercises 
for  the  day :  Hon.  John  B.  McPherson,  Chairman ;  with 
him  Mr.  Victor  Guillou,  representing  the  Pennsylvania 
Bar  Association;  Hon.  W.  W.  Wiltbank  and  Mr.  Wm. 
H.  Staake,  representing  the  Law  Association;  Mr.  Jos. 
DeF.  Junkin  and  Mr.  John  K.  Kead,  representing  the 
Lawyers'  Club. 

This  sub-committee  organized  by  the  election  of  Mr. 
William  H.  Staake  as  secretary. 


441  Pennsylvania —  Centennial  Anniversary. 

The  sub-committee  recommended  the  following  action, 
which  was  afterwards  approved  by  the  General  Commit 
tee: 

"  That  on  Marshall  Day,  at  11  o'clock  a.  m.,  there  be 
a  meeting  of  the  Ear  in  the  room  of  the  United  States 
Circuit  Court  of  Appeals,  at  which  a  formal  minute  should 
be  presented  to  the  Court,  on  behalf  of  the  Bar,  and  your 
committee  recommends  that  Samuel  Dickson,  Esq.,  Chan 
cellor  of  the  Law  Association,  an  Ex-President  of  the 
Pennsylvania  Bar  Association,  and  a  member  of  the 
Board  of  Governors  of  the  Lawyers'  Club,  be  requested 
to  draft  and  present  this  minute  to  the  Court." 

Colonels  Wendell  P.  Bowman,  Henry  T.  Dechert  and 
Eobert  Ealston,  Jr.,  were  appointed  as  marshals  of  the 
procession  of  the  Bench  and  Bar;  the  Presidents  of  the 
three  law  classes  of  the  University  of  Pennsylvania 
were  appointed  marshals  of  their  respective  classes. 

All  of  the  courts  of  the  United  States,  the  Supreme 
Court  of  Pennsylvania,  and  courts  of  the  county  of 
Philadelphia,  in  response  to  the  request  of  the  General 
Committee,  adjourned  on  Monday,  February  4, 1901,  John 
Marshall  Day,  with  the  exception  of  the  United  States 
Circuit  Court  of  Appeals,  which  held  a  special  session,  to 
receive  the  minute  presented  to  the  court  on  behalf  of 
the  Bar.  This  minute  was  prepared  by  Samuel  Dickson, 
Esq.,  the  Chancellor  of  the  Law  Association,  and  was  pre 
sented  in  the  unavoidable  absence  of  Mr.  Dickson,  on  ac 
count  of  sickness,  by  Eichard  C.  Dale,  Esq.,  of  the  Phila 
delphia  Bar. 

The  expenses  of  the  celebration,  of  the  publication  of 
the  proceedings,  and  of  placing  a  suitable  memorial  tablet 
in  the  room  of  the  United  States  Circuit  Court  of  Appeals, 


John  Marshall  Memorial.  442 

were  borne  by  a  voluntary  subscription  of  the  members 
of  the  Bar  of  the  City  of  Philadelphia. 

A  meeting  of  the  General  Committee  was  held  on  the 
eighteenth  day  of  February,  1901,  at  which  it  was  form 
ally  resolved  that  the  residue  of  the  moneys  subscribed, 
and  such  other  funds  as  may  be  received,  should  be  used 
in  procuring  a  tablet  to  be  placed  in  the  room  of  the 
United  States  Circuit  Court  of  Appeals,  and,  if  the  funds 
of  the  committee  should  be  sufficient,  a  tablet  should  also 
be  placed  on  the  house  No.  4-26  Walnut  Street  (the  old 
Crimm  Boarding  House),  where  Chief  Justice  Marshall 
died  in  1835. 

It  was  further  resolved  that  the  selection  of  the  two 
tablets  and  the  publication  of  the  proceedings  of  the  cele 
bration  should  be  referred  to  a  special  committee  as  fol 
lows:  Henry  Flanders,  Esq.,  Hon.  George  M.  Dallas, 
Samuel  Dickson,  Esq.,  Victor  Guillou,  Esq.,  Joseph  DeF. 
Junkin,  Esq.,  together  with  John  Cadwalader,  Esq.,  the 
Chairman,  and  William  H.  Staake,  Esq.,  the  Secretary  of 
the  General  Committee.  This  committee  organized  on 
the  twenty-fifth  day  of  February,  1901,  by  the  selection 
of  Henry  Flanders,  Esq.,  as  Chairman  and  William  H. 
Staake,  Esq.,  as  Secretary.  Messrs.  Dickson,  Guillou  and 
Junkin  were  appointed  a  sub-committee  to  propose  and 
report  the  literary  composition  of  the  inscription  to  be 
placed  upon  the  tablet  in  the  court  room.  Messrs.  Cad 
walader,  Junkin  and  Guillou  a  sub-committee  to  propose 
and  report  upon  the  physical  composition  and  form  of 
the  tablet  and  the  contract  for  its  erection.  Messrs.  Cad 
walader,  Dallas  and  Staake  a  sub-committee  to  confer 
with  the  judges  of  the  United  States  Court  of  Appeals 
as  to  an  appropriate  site  for  the  tablet. 


443  Pennsylvania —  Centennial  Anniversary. 

By  resolution  of  the  committee  the  following  will  be 
the  inscription  upon  the  tablet: 

Upon  February  4th,  1901 
being  the  One  Hundredth  Anniversary  of  the  day  upon  which 

JOHN  MARSHALL 

took  his  seat  as  Chief  Justice  of  the  Supreme  Coui  t  of  the  United 
States,  the  Chancellor  of  the  Law  Association  of  Philadelphia 

on  behalf  of 

THE  LAW  ASSOCIATION  OF  PHILADELPHIA 

THE  LAWYERS'  CLUB  OF  PHILADELPHIA 

THE  PENNSYLVANIA  BAR  ASSOCIATION 

THE  DEPARTMENT  OF  LAW  OF  THE  UNIVERSITY  OF  PENNSYLVANIA 

acting  for  the  members  of  the  Bar  of  the 
Supreme  Court  and  other  Courts  of  Pennsylvania, 
moved  the  United  States  Circuit  Court  of  Appeals 

for  the  Third  Circuit 

then  specially  convened 

to  enter  upon  its  records  a  Minute 

expressing  their  appreciation  of  his  character  and  work 

And  it  was  thereupon 

SO  ORDERED. 


THE  MEETING  OF  THE  UNITED  STATES  CIRCUIT 
COURT  OF  APPEALS,  MONDAY,  FEBRUARY  4, 
1901,  VT  11  A.M. 

The  Honorable  George  M.  Dallas,  the  Senior  Judge, 
presided.  Sitting  with  him  were  the  Honorable  George 
Gray,  Honorable  William  Butler,  Honorable  John  B. 
McPherson  and  Honorable  Andrew  Kirkpatrick.  The 
orator  of  the  day,  Honorable  James  T.  Mitchell,  LL.D,, 
was  also  present  upon  the  Bench. 

The  court  being  formally  opened,  Mr.  Kichard  C.  Dale, 
of  the  Philadelphia  Bar,  in  the  absence  of  Mr.  Samuel 
Dickson,  the  Chancellor  of  the  Law  Association  of  Phila 
delphia,  then  addressed  the  court. 


John  Marshall  Memorial.  444 

Introductory  Address  and  Minute. 

May  it  please  your  Honors: 

At  the  approach  of  the  one  hundredth  anniversary  of 
the  day  on  which  John  Marshall  took  his  seat  upon  the 
Bench  of  the  Supreme  Court  of  the  United  States,  there 
grew  up  a  feeling  throughout  the  country  that  the  day 
should  be  marked  by  appropriate  exercises,  in  which  the 
services  of  the  great  Chief  Justice  might  be  recalled  and 
some  expression  given  to  the  affectionate  veneration  in 
which  his  memory  is  held  by  the  Bench  and  Bar  of  the 
United  States.  For  reasons  which  will  at  once  suggest 
themselves  to  your  Honors,  it  was  recognized  that,  irre 
spective  of  what  might  be  done  elsewhere,  it  was  essen 
tial  that  the  day  should  be  properly  observed  in  this  city, 
and  the  Law  Association  of  Philadelphia  accordingly  ap 
pointed  a  committee,  and  requested  the  appointment  of 
similar  committees  by  the  Pennsylvania  Bar  Association 
and  the  Lawyers'  Club  of  Philadelphia,  that  they  might 
unite  in  making  the  necessary  arrangements  for  the  occa 
sion.  A  joint  committee  was  then  made  up  from  repre 
sentatives  of  the  three  organizations  to  take  charge  of 
the  proceedings,  and,  by  way  of  introduction  to  the  exer 
cises  of  the  day,  the  committee  appointed  Samuel  Dickson, 
Esq.,  the  Chancellor  of  the  Law  Association,  to  prepare 
and  present  a  Minute  to  your  Honors,  to  be  entered  upon 
the  records  of  the  Court.  In  compliance  with  the  direc 
tion  of  the  committee,  Mr.  Dickson  prepared  a  Minute, 
but  was  obliged  to  go  abroad  last  week  on  account  of 
illness.  Before  sailing,  he  requested  me  to  present  his 
Minute  to  the  Court,  and  with  your  Honors'  permission 
I  will  now  read  it,  and  ask  that  it  be  entered  upon  the 
records  of  this  proceeding. 


445  Pennsylvania  —  Centennial  Anniversary. 

MINUTE. 

And  now,  February  4,  1901,  the  Law  Association  of 
Philadelphia,  the  Pennsylvania  Bar  Association,  the  Law 
yers'  Club  of  Philadelphia,  and  the  Law  Department  of 
the  University  of  Pennsylvania,  acting  on  behalf  of  the 
Bar  of  Pennsylvania,  move  that  the  following  Minute  be 
entered  upon  the  records  of  this  court: 

It  is  the  hereditary  privilege  of  the  members  of  this 
Bar  to  express,  upon  every  proper  occasion,  their  vener 
ation  for  the  character  of  Chief  Justice  Marshall  and 
their  appreciation  of  his  judicial  work.  He  had  been 
personally  well  known  to  the  lawyers  of  this  city  while 
serving  as  a  member  of  the  House  of  Representatives  in 
the  session  of  1799-1800,  and  when  again  here  in  1831, 
he  was  requested  by  the  Bar  of  Philadelphia  to  give  sit 
tings  to  Henry  Inman,  who  painted  the  portrait  which 
has  passed  into  the  custody  of  the  Law  Association  and 
is  the  one  authentic  record  of  the  form  and  features  of 
the  original.  It  was  in  pursuance,  also,  of  the  action 
taken  at  a  meeting  of  this  Bar,  upon  the  announcement 
of  his  death,  that  the  sculptor,  Story,  the  son  of  his  old 
colleague  and  friend,  was  engaged  to  model  the  statue 
now  placed  at  the  foot  of  Capitol  Hill;  but  better  than 
the  likeness  of  the  outer  man  by  painter  or  sculptor  is 
the  masterly  delineation  of  his  mind  and  life  in  the  Me 
morial  Addresses  delivered  by  Horace  Binney  and  William 
Henry  Eawle,  and  in  the  biographies  by  members  of  the 
Bar  of  this  city,  still  living.  Thus  by  the  canvas  of  the 
painter  and  the  bronze  of  the  sculptor,  and  by  words 
more  lasting  than  either,  this  Bar  has  been  diligent  to 
preserve  the  memory  of  what  manner  of  man  the  Chief 
Justice  was  in  person  and  in  achievement. 

To  the  estimate  made  up  by  men  so  competent  to  meas 
ure  his  worth  and  to  pass  judgment  upon  his  work,  noth- 


John  Marshall  Memorial.  446 

ing  can  profitably  be  added ;  and  in  his  case  contempo 
rary  opinion  is  exceptionally  trustworthy.  He  was  so 
simple  and  unassuming,  so  free  from  self-seeking  or  from 
any  thought  of  self  —  so  clear  in  his  great  office  —  and  of 
such  transparent  simplicity  and  sincerity  of  character, 
that  it  has  always  been  manifest  that  he  was  at  heart  just 
what  he  seemed  to  be,  and  it  would  never  occur  to  any 
eulogist  to  claim,  as  a  merit,  that  no  record  could  ever 
leap  to  light  to  shame  his  memory.  JSfor  is  it  possible, 
perhaps,  to  appreciate  his  opinions  at  this  day  as  fully  as 
at  the  time  of  their  delivery.  They  are  now  familiar  to 
every  lawyer,  and  are  become  an  integral  part  of  the 
great  body  of  law,  which  is  learned  by  the  student  as 
established  and  accepted  doctrine ;  but  the  lawyers  who 
declared,  in  the  address  presented  upon  the  occasion  of 
his  visit  in  1831,  that  they  could  not  but  "  consider  the 
whole  nation  indebted  to  one  who  for  so  long  a  series 
of  years  has  illuminated  its  jurisprudence  and  enforced 
with  equal  mildness  and  firmness  its  constitutional  au 
thority;  who  has  never  sought  to  enlarge  the  judicial  power 
beyond  its  proper  bounds,  nor  feared  to  carry  it  to  the  full 
extent  that  duty  required"  belonged  to  a  period  when  the 
questions  with  which  he  had  been  called  upon  to  deal 
and  decide  were  still  unsettled,  and  when  the  law  libra 
ries  of  the  day  were  barren  of  authority,  so  that  they 
could  understand  the  full  force  of  Mr.  Justice  Story's 
saying  that  "  these  exquisite  judgments  were  the  fruits 
of  his  own  unassisted  meditations." 

It  is  true,  however,  that  time  now  enables  us  to  under 
stand,  as  they  could  not,  how  broad  and  deep  and  abid 
ing  was  the  impress  which  the  Chief  Justice  was  making 
upon  the  institutions  and  jurisprudence  of  the  country. 
It  is  now  apparent  that  the  Federal  Judiciary  took  shape 
and  earned  its  commanding  place  in  the  life  of  the  nation 


447  Pennsylvania  —  Centennial  Anniversary. 

through  his  labors.  He  began  by  proving  that  the  Gov 
ernment  of  the  United  States  deserved,  as  he  himself  ex 
pressed  it,  "  the  high  appellation  of  a  government  of  laws 
and  not  of  men."  The  course  of  reasoning  by  which  he 
demonstrated  that  all  the  departments  of  the  Govern 
ment  were  defined  and  limited  by  the  Constitution,  and 
that  an  act  of  Congress  contrary  to  the  Constitution  was 
not  law,  and  that  the  courts  as  well  as  other  departments 
were  bound  by  that  instrument,  compelled  assent.  The 
Constitution  was  thus  made  in  fact  the  supreme  law  of 
the  land  and  the  test  by  which  the  court  might  be  re 
quired,  by  any  suitor,  to  measure  the  validity  of  any 
other  law  and  the  legality  of  any  executive  act.  What 
followed  was  the  development  and  illustration  of  this 
seminal  principle,  and  in  working  out  the  problems  as 
they  subsequently  arose,  he  laid  down  canons  for  the  con 
struction  of  the  Constitution  of  the  United  States  which 
are  accepted  as  final  authority,  not  only  in  determining 
the  true  meaning  of  the  Constitution  of  the  United  States, 
but  of  the  Constitution  of  every  State  in  the  Union ;  and 
while  his  judgments  fixed  the  relations  of  the  Federal 
and  State  Governments  and  of  the  States  as  between 
themselves;  of  the  Executive  and  the  Legislature  to  the 
Judiciary,  and  to  one  another,  and  defined  the  immuni 
ties  and  duties  of  foreign  sovereigns, —  they  did  a  work 
no  less  important  in  making  effectual  the  safeguards  of 
personal  rights  and  of  private  contracts,  of  the  freedom 
of  interstate  commerce  and  of  the  navigable  waters  of 
the  United  States. 

When  his  work  is  thus  surveyed  as  a  whole,  it  is  mani 
fest  that  this  plain,  simple  man,  who  eschewed  all  cere 
mony  and  whose  pleasure  it  was  to  live  undistinguished 
from  his  fellow-citizens;  who  wore  none  of  the  insignia 
and  wielded  none  of  the  resources  of  worldly  rank  or 


John  Marshall  Memorial  448 

power,  was  exercising  an  influence  —  decisive  then,  and 
accumulating  and  reduplicating  ever  since  —  greater  than 
that  of  any  statesman  or  soldier  at  home  or  abroad.  The 
monarchs  of  Europe  who  were  his  contemporaries  are 
scarcely  remembered  by  name,  with  the  exception  of  one, 
who  gave  his  name  to  a  code  compiled  by  others,  and 
the  Code  Napoleon  is  the  only  memorial  left  of  the  im 
perial  sway  which  dominated  the  Continent.  But  the 
work  of  Marshall  lives  to-day  and  is  more  potent  than 
ever.  It  constitutes  an  integral  part  of  the  body  of  law 
which  enters  into  the  daily  life  of  every  citizen,  which 
maintains  the  autonomy  of  the  States  and  the  integrity 
of  the  Union,  and  by  which  the  civilized  nations  of  the 
world  regulate  their  intercourse;  and  what  is  possibly  of 
greater  importance,  the  ready  acceptance  by  the  people 
of  the  United  States  of  the  decisions  of  their  Supreme 
Court,  in  loyal  submission  to  the  supremacy  of  the  law, 
is  largely  due  to  the  impression  made  upon  the  country 
by  his  character  and  career  as  a  man  and  as  a  judge. 

To  the  tribunal  which  secured  under  him  as  its  presid 
ing  magistrate  the  confidence  of  a  nation  of  freemen, 
sovereign  States  gladly  submit  their  strifes,  and  the  des 
tiny  of  millions  of  an  alien  race  now  awaits  its  decision. 
When  the  greatest  of  English  chancellors  was  about  to 
determine  the  rights  and  boundaries  of  "  two  great  Pro 
vincial  governments  "-  —  as  he  styled  the  colonies  of  Mary 
land  and  Pennsylvania  —  he  said  that  "the  cause  was  of 
a  nature  worthy  the  judicature  of  a  Roman  Senate  rather 
than  a  single  judge,  and  his  consolation  was  that,  if  he 
should  err  in  his  judgment,  there  was  a  judicature  equal 
in  dignity  to  a  Roman  Senate  that  would  correct  it." 
The  colonies  of  which  he  was  to  draw  the  boundary  line 
were  then  comparatively  uninhabited,  but  now  equal  or 
excel  in  numbers  and  wealth  the  Kingdom  of  Great  Brit- 


449  Pennsylvania  —  Centennial  Anniversary. 

ain  at  the  time  when  Lord  Hardwicke  took  his  seat  upon 
the  woolsack ;  and  the  Supreme  Court  would  proceed  to 
decide  to-day  a  question  of  boundaries  or  any  other  con 
troversy  between  them  as  if  it  were  a  question  between 
private  litigants.  Compared  to  such  an  arbitrament  as 
an  instrument  for  ascertaining  and  declaring  the  very 
right  of  a  dispute,  armies  and  navies  are  but  the  surviv 
ing  agencies  of  a  lower  civilization;  and  if  the  future  is 
to  attain  to  the  ideal  of  a  "  Parliament  of  man  and  a 
Federation  of  the  world,"  it  will  find  the  exemplar  of  its 
ultimate  judicature  in  the  court  which  John  Marshall 
made  a  living  reality. 

It  is  therefore  with  heartfelt  gratitude  that  we  assem 
ble  on  this  anniversary  to  make,  once  more,  formal  and 
public  acknowledgment  of  the  obligation  of  our  country 
and  our  profession  to  the  wise  and  upright  judge,  who, 
one  hundred  years  ago,  assumed  the  duties  of  Chief  Justice 
of  the  Supreme  Court  of  the  United  States. 

Response  of  the  Honorable  George  M.  Dallas. 

Gentlemen  of  the  Bar: 

The  constrained  absence  of  Mr.  Justice  Shiras  and  of 
Judge  Acheson,  which  we  all  regret,  is  especially  deplored 
by  that  member  of  the  court  to  whom,  in  consequence, 
the  honor  of  speaking  on  its  behalf  has  most  inauspi- 
ciously  descended.  We  regret,  too,  that  Judge  Buffington 
and  Judge  Bradford  have  been  prevented  from  attesting 
by  their  presence  the  sympathetic  interest  which  we  have 
been  assured  they  feel  in  the  memorable  proceedings  of 
to-day. 

This  court  has  been  convened  solely  for  the  purpose  of 
enabling  us  to  unite  with  you,  and  with  our  brethren  of 
the  Pennsylvania  courts,  in  rendering  tribute  to  the  mem- 
VOL.  1  —  29 


John  Marshall  Memorial.  450 

ory  of  one  whose  title  to  the  homage  of  the  noble  pro 
fession  to  which  we  all  belong  time  has  but  strengthened 
and  confirmed.  The  value  of  John  Marshall's  services  to 
his  country's  jurisprudence  can,  even  at  this  day,  scarcely 
be  appreciated,  and  we  will  make  no  attempt  to  estimate 
it.  His  meed  of  praise  could  not  be  reckoned  in  hurried 
words,  and  the  teeming  field  of  befitting  eulogy  has  been 
so  happily  allotted  as  to  warn  us  that  any  encroachment 
there  would  be  a  trespass  without  pretext  of  occasion  or 
color  of  excuse.  There  is,  however,  abundant  precedent 
for  borrowing  from  Marshall  himself  the  best  expression 
of  the  eligible  thought,  and  this,  at  least,  may  now  be 
done,  and  yet  no  bounds  be  broken;  for  it  seems  to  be 
peculiarly  appropriate  that  in  this  place,  where  justice  is 
judicially  administered,  there  should  be  applied  to  our 
most  perfect  pattern  of  judicial  excellence  the  singularly 
apposite  encomium  with  which  he  closed  his  Life  of 
"Washington.  We  need  do  no  more  than  recall  it  to  re 
membrance:  its  pertinence  is  plain. 

"  Endowed  by  nature  with  a  sound  judgment,  and  an 
accurate  discriminating  mind,  he  feared  not  that  laborious 
attention  which  made  him  perfectly  master  of  those  sub 
jects,  in  all  their  relations,  on  which  he  was  to  decide; 
and  this  essential  quality  was  guided  by  an  unvarying 
sense  of  moral  right,  which  would  tolerate  the  employ 
ment,  only,  of  those  means  that  would  bear  the  most 
rigid  examination;  by  a  fairness  of  intention  which 
neither  sought  nor  required  disguise;  and  by  a  purity  of 
virtue  which  was  not  only  untainted  but  unsuspected." 

Gentlemen,  the  felicitous  memorial  which  you  have 
caused  to  be  so  suitably  presented  is  unanimously  con 
curred  in  by  the  court,  and  will  be  transcribed  at  length 
upon  its  minutes. 


45 1  Pennsylvania  —  Centennial  Anniversary. 

The  proceedings  in  the  United  States  Circuit  Court  of 
Appeals  being  closed,  the  Court  adjourned. 

The  court  room,  notwithstanding  the  inclemency  of  the 
weather,  was  crowded  with  members  of  the  Bench  and 
Bar,  to  its  full  capacity. 

The  Procession  of  the  Bench  and  Bar. 
Following  the  adjournment  of  the  court,  the  members 
of  the  Judiciary  of  the  United  States  courts,  of  the  Su 
preme  and  Superior  Courts  of  the  Commonwealth  of 
Pennsylvania,  of  the  courts  of  counties  outside  of  Phila 
delphia,  and  of  the  Courts  of  Common  Pleas  and  the 
Orphans'  Court  of  the  County  of  Philadelphia,  together 
with  visiting  members  of  the  Bar,  the  members  of  the  Bar 
of  the  county  of  Philadelphia,  and  the  students  of  the 
Law  School  of  the  University  of  Pennsylvania,  the  mem 
bers  of  the  Law  Academy  of  Philadelphia,  the  students 
of  the  Philadelphia  Law  School  of  Temple  College,  and 
the  unorganized  body  of  students  of  law,  properly  mar 
shaled,  proceeded  to  Musical  Fund  Hall. 

PROCEEDINGS  IN  MUSICAL  FUND  HALL. 

The  meeting  in  Musical  Fund  Hall  was  presided  over 
by  the  Honorable  George  M.  Dallas  of  the  United  States 
Circuit  Court,  who,  in  calling  the  meeting  to  order,  said : 

Ladies  and  Gentlemen:  The  high  dignity  of  presiding 
in  this  notable  assemblage  having  devolved  upon  me, 
I  now  call  the  meeting  to  order.  The  Eight  Eeverend 
O.  W.  Whitaker  will  open  its  proceedings  with  prayer. 

A  fervent  and  appropriate  prayer  was  then  offered  by 
Bishop  Whitaker. 

Judge  Dallas,  as  presiding  officer  of  the  meeting,  then 
introduced  Mr.  Justice  James  T.  Mitchell,  the  orator  of 
the  day. 


John  Marshall  Memorial.  452 

Introductory  Address  by  George  M.  Dallas. 

AVe  have  come  together,  ladies  and  gentlemen,  to  com 
memorate  the  accession  to  the  office  of  Chief  Justice  of 
these  United  States  of  the  foremost  in  the  line  of  illus 
trious  lawyers  who  have  adorned  that  exalted  station, 
and  to  acclaim  our  grateful  sense  of  the  inestimable  bene 
fits  which,  after  the  lapse  of  one  hundred  years,  our 
country  still  derives  from  that  event.  For  this  oppor 
tunity  to  evince  the  veneration  with  which  as  soldier, 
statesman,  jurist  and  citizen,  we  bear  John  Marshall  in 
remembrance,  we  are  indebted  to  the  Law  Association  of 
Philadelphia,  the  Lawyers'  Club  of  Philadelphia,  the 
Pennsylvania  Bar  Association,  and  the  Law  School  of 
the  University  of  Pennsylvania.  The  members  of  the 
joint  committee  of  these  several  bodies  have  discharged 
all  the  duties  confided  to  them  with  ardent  zeal,  and 
now  —  despite  the  inclemency  of  the  weather  —  assured 
success;  but,  above  all,  they  are  to  be  congratulated  upon 
having  most  aptly  selected,  and  most  fortunately  secured, 
as  the  orator  of  the  day,  a  distinguished  member  of  the 
highest  judicial  tribunal  of  this  Commonwealth,  at  whose 
feasts  of  reason  good  digestion  always  waits  on  appetite. 
I  know  it  will  be  as  gratifying  to  you  to  receive  as  it  is 
to  the  chair  to  present  the  Honorable  James  T.  Mitchell. 

\ddress  of  Mr.  Justice  Mitchell. 

To  the  dweller  on  the  plain,  the  neighboring  hills 
which  shut  out  the  distant  horizon  seem  to  be  the  sum 
mits  of  the  earth.  But  the  traveler  as  he  journeys  on 
ward  finds  the  encircling  heights  gradually  sinking  to 
the  general  level  of  his  enlarged  and  widening  view,  till 
the  perspective  brings  all  things  to  their  true  proportions. 

In  the  estimate  of  men  and  of  events  the  perspective 
of  time  is  no  less  potential  and  no  less  necessary  than  the 


453  Pennsylvania  —  Address  of  Justice  Mitchell. 

perspective  of  distance  in  the  estimation  of  things  visible. 
The  popular  idols  of  to-day  are  forgotten  of  the  morrow, 
while  the  silent  and  unnoticed  great  come  forward  to 
their  true  place.  It  is  the  habit  of  our  minds  to  measure 
by  periods.  The  new  year  suggests  the  retrospect  of  its 
predecessor  with  respect  to  ourselves  and  our  daily  lives, 
and  so  the  new  century  naturally  turns  our  thoughts  to 
the  wider  field  of  history  and  our  country  in  the  century 
that  has  closed.  The  small  prominences  of  ephemeral 
measures  and  men  have  come  down  to  the  common  level, 
but  when  through  the  long  vista  of  a  hundred  receding 
years  one  lofty  figure  has  steadily  risen  above  even  the 
height  at  which  its  contemporaries  placed  it,  then  indeed 
we  have  the  last  and  indisputable  proof  of  its  true  emi 
nence. 

We  have  lived  in  an  age  of  centennial  commemora 
tions.  Twenty-five  years  ago,  here  in  its  birthplace,  the 
Republic  celebrated  the  first  century  of  its  existence,  and 
revealed  to  itself  as  well  as  to  the  half  incredulous  world 
the  unparalleled  progress  of  the  thirteen  weak  and  scat 
tered  colonies  to  a  place  in  the  front  rank  of  the  nations 
of  the  earth.  Since  then  we  have  had  other  centennials 
with  appropriate  celebrations,  but  none  more  notable 
than  that  which  brings  us  together  to-day.  We  are  here 
to  celebrate  one  of  the  greatest  of  the  heroes  of  peace,  to 
pay  our  willing  and  affectionate  tribute  of  appreciation, 
of  gratitude  and  of  reverence  to  great  public  services,  ex 
alted  personal  character,  and  clear  pre-eminence  in  the 
least  showy  and  least  obtrusive  path  of  all  the  fields  of 
intellectual  effort.  There  is  no  criterion  of  any  man's 
worth  and  work  so  sure  as  professional  approval,  and  in 
no  profession  is  judgment  more  unerring  than  in  the 
lawyer's  final  estimate  of  the  judge.  For  the  judge  must 
do  his  daily  work  in  the  open,  before  a  trained  and 


John  Marshall  Memorial.  454 

sharply  observant  audience  of  critics  learned  in  the  sub 
jects  on  which  he  is  called  to  act,  more  minutely  informed 
on  each  case  than  he  can  be,  and  viewing  it  with  the  ste 
reoscopic  result  of  eyes  sharpened  by  individual  interests 
at  a  different  and  conflicting  angle.  When,  therefore,  at 
the  end  of  a  century  we  find  his  countrymen,  led  by  the 
legal  profession,  turning  spontaneously  to  a  fitting  com 
memoration  of  the  day  that  John  Marshall  took  his  seat 
as  Chief  Justice  of  the  Supreme  Court  of  the  United 
States,  we  have  a  tribute  not  due  to  the  glamour  of  tem 
porary  popularity,  but  to  the  cool  and  deliberate  judg 
ment  of  men  who  know.  The  honor  of  the  first  public 
suggestion  belongs,  I  believe,  to  the  Bar  of  Illinois.  On 
a  bronze  tablet  in  one  of  the  busiest  streets  of  the  second 
city  in  the  Union  you  may  read  the  date  1812  and  recall 
from  the  accompanying  inscription  that  eleven  years 
after  he  took  his  seat  as  Chief  Justice  all  that  Marshall 
knew  of  the  site  of  Chicago  was  the  dread  news  that 
came  from  the  depths  of  the  Western  wilderness  that  the 
Indians  had  massacred  the  little  garrison  of  Fort  Dear 
born.  History  affords  no  more  striking  note  of  the 
changes  a  century  may  produce  than  that  the  site  of  that 
gallant  little  outpost,  now  the  home  of  a  larger  popula 
tion  than  that  of  the  three  largest  States  in  1801,  first 
summons  the  Bar  of  the  country  to  the  commemoration 
of  the  greatness  of  the  Chief  Justice  whose  work  was 
done  for  a  young  and  experimental  government,  but  was 
laid  down  on  such  broad  and  sure  and  permanent  lines 
that  expanding  territory  and  teeming  populations  have 
not  lessened  its  usefulness,  nor  in  the  least  impaired  its 
vigor. 

The  suggestion  once  made  struck  a  responsive  chord 
over  the  whole  land,  and  to-day  his  fellow-citizens,  his 
brethren  in  the  profession,  are  gathered  in  every  centre 


455  Pennsylvania  —  Address  of  Justice  Mitchell. 

of  legal  activity  to  bear  witness  that  the  lofty  figure  who 
was  placed  at  the  head  of  the  judiciary  a  hundred  years 
ago  has  continued  to  grow  in  height  and  eminence  with 
the  increasing  years. 

John  Marshall  was  born  September  24, 1755,  at  a  small 
place  called  Germantown,  now  Midland,  within  the  sun 
set  shadow  of  the  Blue  Ridge  in  the  valley  of  Fauquier 
county,  Virginia.  His  ancestor,  who  had  been  a  royalist 
cavalry  officer  in  the  service  of  King  Charles,  came  to 
Virginia  and  settled  in.the  famous  county  of  Westmore 
land,  the  birth  place  of  Washington,  of  Monroe,  of  Rich 
ard  Henry  Lee  and  his  famous  brothers.  There  his  de 
scendant,  Thomas,  father  of  the  Chief  Justice,  was  born 
in  the  same  year  with  Washington,  was  schoolmate  with 
him  in  the  scanty  school  days  of  their  youth,  acted  with 
him  as  assistant  in  making  surveys  for  the  great  landed 
proprietor  of  that  day,  Lord  Fairfax,  and  served  under 
him  as  Colonel  of  the  Third  Virginia  Line  at  Brandy  wine, 
at  Valley  Forge  and  at  Trenton. 

In  the  history  of  that  time  few  things  are  more  notable 
than  the  precocity  of  the  men.  The  situation  called  for 
early  development.  Men  were  scarce  and  work  of  every 
kind  was  all  around  them  waiting  for  their  hands.  En 
ergy  and  activity  were  in  the  air  they  breathed,  and  the 
impatience  of  the  youthful  spirit  to  assume  the  rights  and 
duties  of  manhood  was  stimulated  by  the  surrounding 
opportunities  at  an  age  which  in  an  older  community 
would  have  found  them  contented  to  be  school  boys.  The 
surveys,  the  field-notes  and  the  maps  made  by  Washing 
ton  at  the  age  of  sixteen,  some  of  which  you  may  see  to-day 
in  the  collections  of  the  Historical  Society  of  Pennsyl 
vania,  attest  the  maturity  as  well  as  the  activity  of  mind 
and  body  which  resulted  in  the  Virginia  colonel  at  twenty- 


John  Marshall  Memorial.  456 

three  taking  practical  command  and  covering  the  retreat 
of  the  British  regulars  on  the  banks  of  the  Monongahela. 
And  the  youthful  Washington  was  \>u.i  primus  inter  pares 
with  his  associates. 

Thomas  Marshall  moved  to  Fauquier  county,  married 
Mary  Isham  Keith,  the  daughter  of  an  Episcopal  minis 
ter,  and  they  had  fifteen  children,  of  whom  John  was  the 
oldest.  Fauquier  was  a  frontier  county,  sparsely  settled, 
and  the  opportunities  of  education  of  the  future  Chief  Jus 
tice  were  limited.  At  the  age  of  fourteen  he  was  sent  to 
Westmoreland  to  the  school  of  the  Rev.  Archibald  Camp 
bell,  where  he  had  James  Monroe  for  a  fellow-student. 
After  a  year  there  he  returned  home  and  received  further 
instruction  in  the  classics  from  the  Rev.  James  Thomson 
for  another  year.  This  ended  his  regular  education,  but  his 
father,  though  of  limited  early  opportunities,  was  a  diligent 
reader,  and  not  only  instructed  his  son  in  mathematics, 
but  guided  his  taste  in  reading  the  best  English  authors, 
both  in  prose  and  poetry.  Judge  Story  relates  how  the 
Chief  Justice  was  accustomed  to  say  with  affectionate 
emphasis,  "  My  father  was  a  far  abler  man  than  any  of 
his  sons.  To  him  I  owe  the  solid  foundation  of  all  my 
own  success  in  life."  It  is  recorded  of  the  Chief  Justice 
that  at  twelve  years  of  age  he  had  copied  the  whole  of 
Pope's  Essay  on  Man,  and  that  his  early  taste  was  for 
poetry,  of  which  he  not  only  read  but  wrote  a  great  deal. 
Prof.  Theophilus  Parsons  in  some  Reminiscences  of  Mar 
shall  says  that  he  early  showed  the  sagacity  which  always 
distinguished  him,  for  though  he  wrote  a  good  many 
verses  he  never  published  any  of  them.  The  genius  of 
the  Chief  Justice  was  certainly  not  poetic,  yet  I  have  no 
doubt  it  found  nourishment  as  well  as  recreation  in  his 
early  reading  in  that  field,  and  the  pure  and  classic  Eng 
lish  of  his  writings  may  be  justly  attributed,  in  part  at 


457  Pennsylvania — Address  of  Justice  Mitchell. 

least,  to  a  taste  fashioned  on  those  incomparable  models. 
Both  in  matter  and  in  manner  it  must  be  admitted  that 
Pope's  Essay  on  Man  is  very  solid  food  for  a  boy  of  twelve. 

A  little  later  his  attention  was  given  to  the  more  seri 
ous  study  of  military  matters.  He  was  born,  as  we  have 
seen,  in  the  year  of  Braddock's  defeat,  the  French  and 
Indian  war  was  almost  within  his  recollection  and  must 
have  been  the  topic  of  frequent  discussion  in  all  his  boy 
hood,  and  as  he  grew  towards  manhood  the  disputes  of 
the  colonies  with  the  mother  country  and  the  prophetic 
feeling  of  the  approaching  collision  turned  his  mind  in 
that  direction.  When  the  news  came  that  blood  had  been 
shed  at  Lexington  he  was  already  lieutenant  of  a  militia 
company  of  which  his  father  had  been  captain,  and  during 
the  same  summer  he  was  appointed  lieutenant  in  a  bat 
talion  of  Minute  Men,  and  saw  his  first  service  in  the  en 
counter  at  Great  Bridge  near  Norfolk  with  the  Loyalists 
under  Lord  Dunmore.  In  July,  1776,  he  was  made  lieu 
tenant  in  the  Eleventh  Virginia  Regiment  of  the  Conti 
nental  Line,  became  captain  in  May,  1777,  and  remained 
in  active  service  till  1779,  having  been  present  at  the 
battles  of  Brandy  wine,  Germantown,  and  Monmouth,  the 
assault  at  Stony  Point  and  at  Paulus  Hook,  as  well  as 
through  the  memorable  winter  at  Valley  Forge.  In 
1779  the  number  of  officers  in  the  Virginia  line  being 
found  excessive,  he  was  ordered  to  return  to  Virginia  to 
await  the  raising  of  fresh  levies,  but  these  being  delayed 
he  resigned.  He  re-entered  the  army,  however,  in  Octo 
ber,  1780,  on  the  invasion  of  Virginia  by  the  British 
under  Arnold,  and  served  through  that  campaign. 

On  this  occasion,  when  w^  are  met  to  commemorate 
his  entrance  on  judicial  office,  I  must  necessarily  touch 
thus  briefly  his  military  career,  but  it  would  be  a  mistake 


John  Marshall  Memorial.  458 

to  pass  it  lightly  by  as  a  mere  incident  of  his  youth,  and 
doubly  so  to  overlook  its  effect  upon  him.  It  colored 
his  whole  future  life  and  opinions.  Though  his  rank  was 
not  high  he  appears  to  have  impressed  himself  upon  his 
fellow  officers  not  only  as  a  brave  and  patriotic  soldier, 
but  also  as  a  man  of  clear  and  impartial  mind,  with  a 
judgment  mature  beyond  his  years.  He  was  often  called 
upon  to  act  as  arbiter  of  private  disputes  and  officially 
as  judge  advocate,  and  earned  the  affection  as  well  as  the 
respect  of  officers  and  men.  A  fellow  officer  (Lieutenant 
Philip  Slaughter)  who  left  a  record  of  his  experiences, 
wrote  of  him, "  Marshall  was  the  best  tempered  man  I  ever 
knew.  During  our  sufferings  at  Yalley  Forge  nothing  dis 
couraged,  nothing  disturbed  him.  If  he  had  only  bread  to 
eat,  it  was  just  as  well;  if  only  meat,  it  made  no  difference. 
If  any  of  the  officers  murmured  at  their  deprivations  he 
would  shame  them  by  good-natured  raillery,  or  encourage 
them  by  his  own  exuberance  of  spirits."  But  the  effect  of 
his  military  experience  on  the  man  himself  was  even  more 
notable.  It  broadened  his  ideas,  his  opinions,  his  feelings, 
and  fixed  indelibly  his  ardent  patriotism.  He  entered 
the  army  a  Yirginian,  he  left  it  an  American.  He  has 
himself  written,  "  I  found  myself  associated  with  brave 
men  from  different  States  who  were  risking  life  and 
everything  valuable  in  a  common  cause  believed  by  all  to 
be  most  precious,  and  I  was  in  the  habit  of  considering 
America  as  my  country,  and  Congress  as  my  govern 
ment." 

In  1779,  as  already  said,  he  returned  to  Virginia,  and 
reported  at  William  sburg  where  the  Legislature  was  then 
sitting.  While  waiting  for  the  fresh  forces  to  be  raised, 
he  commenced  his  professional  studies  with  a  course  of 
lectures  on  law  by  the  famous  Chancellor  Wythe  of  Will- 


459  Pennsylvania — Address  of  Justice  Mitchell. 

iam  and  Mary  College,  also  attending  a  course  on  Nat 
ural  Philosophy  by  the  learned  and  accomplished  Madi 
son,  afterwards  Bishop  of  Yirginia.  With  the  short  in 
terruption  of  the  campaign  of  1780,  he  continued  his 
studies  at  Williamsburg,  was  admitted  to  the  bar  in  1781, 
and  returned  to  his  native  county  of  Fauquier. 

He  rose  rapidly  into  practice  and  a  position  of  note. 
He  was  himself  fond  of  attributing  this  to  the  partiality 
of  his  former  friends  and  companions-in-arms,  and  per 
haps  with  some  justice,  for  he  knew  their  sufferings,  their 
necessities,  and  their  wrongs,  and  he  lacked  neither  cour 
age  nor  ability  to  espouse  their  cause.  But  we  know 
there  were  more  potent  reasons  than  this  for  his  success. 
How  many  of  my  younger  hearers  to-day  have  any  ade 
quate  realization  of  the  hardships  and  miseries  of  that 
time,  of  the  poverty  and  distress  of  the  people,  the  ex 
haustion  and  helplessness  of  the  government  ?  The  war 
practically  ended  with  the  surrender  of  Cornwallis  at 
Yorktown  in  October,  1781,  and  officers  and  men  began 
to  return  to  their  homes.  But  peace  was  not  yet,  and 
until  peace  nothing  was  settled  or  secure.  A  cessation 
of  hostilities  in  Europe,  or  a  resolute  War  Minister  in 
England,  might  at  any  time  see  the  renewal  of  the  effort 
to  subdue  the  colonies  and  all  the  patriots'  exertions  and 
sacrifices  must  begin  again  or  their  cause  be  finally  lost. 
The  men  who  returned  home  at  the  end  of  their  enlist 
ment  returned  to  houses  falling  into  decay,  to  fences 
gone  and  unploughed  fields  grown  rank  with  weeds, 
with  herds  scattered  or  perished,  and  desolation  and 
ruin  impending  on  every  hand.  The  Marshall  family 
were  well  to  do  among  their  neighbors,  yet  a  great- 
granddaughter  has  told l  how  when  John  came  from  the 

18  Green  Bag,  480. 


John  Marshall  Memorial.  4GO 

army  to  Fauquier  to  see  his  parents,  bringing  with  him 
some  French  officers,  his  companions,  his  mother  made 
into  bread  a  little  wheat  flour,  the  last  she  had,  which 
had  been  saved  for  some  such  hospitable  occasion,  and 
the  young  children  cried  for  some  of  the  unwonted  dainty, 
so  that  John  first  learned  of  the  straits  to  which  his  family 
were  reduced.  It  is  added  that  with  characteristic  self- 
denial  he  avoided  eating  any  of  the  bread  so  that  the 
younger  children  might  have  some.  Every  biography  of 
every  officer  of  the  time  bears  witness  to  the  same  con 
dition  of  things  —  scant  food,  no  supplies,  no  money.  The 
commissioned  officers  of  the  Quartermaster's  Department, 
under  so  capable  and  so  energetic  a  Quartermaster  Gen 
eral  as  Nathanael  Greene,  memorialized  Congress  that  a 
year's  salary  in  the  depreciated  currency  was  scarcely 
sufficient  to  buy  a  suit  of  clothes,  and  even  that  salary 
was  unpaid. 

This  was  the  state  of  affairs  when  Marshall  came  to  the 
bar.  Virginia  was  an  agricultural  State,  and  the  wealth 
of  the  people  was  in  their  land.  The  land  was  in  the 
condition  I  have  already  alluded  to,  and  the  troubles  that 
arose  from  neglected  and  deserted  homesteads  or  en 
croaching  neighbors  went  inevitably  into  litigation.  Fau 
quier,  moreover,  was  a  frontier  county,  and  "land  cases" 
from  overlapping  surveys,  conflicting  boundary  lines, 
dubious  titles,  and  the  like,  filled  the  dockets  of  the  courts. 
To  such  business  Marshall  brought  special  adaptation  from 
his  knowledge  of  the  country  and  the  people,  his  practical 
familiarity  with  the  questions,  his  clear  and  penetrating 
mind,  his  untiring  industry  and  the  confidence  inspired 
everywhere  by  his  personal  character.  It  was  inevitable 
that  he  should  come  rapidly  to  the  front  of  the  bar. 


46 1  Pennsylvania — Address  of  Justice  Mitchell. 

In  1782,  at  the  age  of  twenty-seven,  he  was  elected  by 
his  neighbors  in  Fauquier  to  the  Legislature,  and  soon 
after  moved  to  Eichmond.  The  bar  there  was  one  of  the 
most  distinguished  in  the  country.  It  was  led  by  Patrick 
Henry  and  Edmund  Randolph,  and  included  John  Wick- 
ham,  James  Innes,  Alexander  Campbell  and  Benjamin 
Botts,  names  which  have  still  a  national  celebrity.  Among 
these  Marshall  took  and  held  an  honorable  position,  and 
his  practice  and  reputation  continued  to  increase  steadily, 
notwithstanding  the  interruptions  of  his  public  legislative 
duties. 

He  had  come  now  to  what  we  may  call  the  second  pe 
riod  of  his  career,  to  practical  acquaintance  with  politics 
and  legislation.  The  problems  that  confronted  him  were 
those  which  have  most  keenly  tried  the  knowledge,  the 
wisdom  and  the  courage  of  statesmen  in  all  ages  and  in 
every  country  —  how,  without  making  their  burdens  un 
bearable,  to  procure  from  a  land  and  a  people  prostrated 
and  exhausted  by  years  of  war,  the  means  of  meeting 
the  public  obligations,  of  preserving  the  public  credit, 
and  the  maintenance  of  the  government.  When  the 
sword  is  drawn  in  defense  of  home  and  liberty,  men  stop 
not  to  count  the  cost.  Moreover  in  a  brave  and  ener 
getic  people  there  is  always  a  large  and  influential  party 
with  whom  war  is  for  its  own  sake  unfortunately  popu 
lar.  The  gaudium  certaminis  itself  supplies  incentive, 
and  men  are  apt  to  throw  away  even  the  little  effort  to 
look  beyond  the  moment.  But  when  the  fight  is  ended, 
and  the  exhausted  combatant  returns  to  a  wasted  home 
stead  and  the  daily  pressure  of  poverty  on  his  household, 
then  indeed  comes  the  need  of  a  resolute  facing  of  the 
cost  and  the  consequences.  This  was  the  situation  and 
these  the  serious  problems  that  engaged  Marshall's  at- 


John  Marshall  Memorial.  462 

tention  from  his  entrance  into  political  life.  I  may  not 
stop  to  dwell  on  particulars,  for  I  must  pass  on  to  even 
larger  questions  that  were  approaching.  Suffice  it 
here  to  say  that  with  two  short  intermissions  caused  by 
his  voluntary  refusal  of  re-election,  he  continued  in  the 
Legislature  for  ten  years  with  constantly  increasing  rep 
utation,  and  during  part  of  that  time  was  also  member 
of  the  Privy  Council  of  the  State,  elected  by  the  Legisla 
ture  under  the  Constitution  of  1776,  to  "  assist  in  the  ad 
ministration  of  government,"  a  sort  of  independent  cab 
inet  to  advise  and  in  some  degree  control  the  executive. 

The  years  following  the  close  of  the  Eevolution  were 
full  of  political  doubt  and  danger  and  confusion.  The 
condition  I  have  mentioned  in  Virginia  prevailed  in  all 
the  States.  The  common  peril  from  the  common  enemy 
no  longer  held  them  unquestioningly  together,  and  under 
the  pressure  of  their  domestic  difficulties  they  were  be 
coming  impatient  of  even  the  slight  interference  of  the 
Central  Government.  Congress  under  the  Articles  of 
Confederation  had  no  power  of  compulsion  on  the  States 
or  their  citizens.  It  could  not  levy  taxes,  or  enforce 
obedience  to  its  laws.  It  represented  merely  a  league, 
not  a  government,  and  its  feebleness  is  thus  forcibly 
summed  up  by  Judge  Story:  "Congress  could  make  con 
tracts,  but  could  not  provide  means  to  discharge  them. 
They  could  pledge  the  public  faith,  but  they  could  not 
redeem  it.  They  could  make  public  treaties,  but  every 
State  in  the  Union  might  disregard  them  with  impunity. 
They  could  enter  into  alliances,  but  they  could  not  com 
mand  men  or  money  to  give  them  vigor.  They  could 
declare  war,  but  they  could  not  raise  troops,  and  their 
only  resort  was  to  requisitions  on  the  States.  In  short, 


463  Pennsylvania — Address  of  Justice  Mitchell. 

all  the  powers  given  by  the  Confederation  which  did 
not  execute  themselves  without  external  aid  were  at  the 
mere  mercy  of  the  States,  and  might  be  trampled  uppn 
at  pleasure."  The  pressure  of  these  evils  produced  the 
convention  which  framed  the  Constitution  of  the  United 
States,  and  then  came  the  momentous  question  of  its 
ratification  by  the  States.  It  is  difficult  for  us  with  our 
experience  of  its  benefits  to  appreciate  the  depth  and 
fervor  of  opposition  to  it.  Yet  in  all  the  States  there 
was  a  party  who  saw  in  it  the  portentous  shadow  of  im 
perialism,  which  would  ultimately  crush  and  obliterate 
the  States  and  build  on  their  ruins  a  central  despotism. 
Nor  was  the  party  small  in  numbers  nor  insignificant  in 
abilities  or  patriotism.  !N~o  man  may  question  the  pa 
triotism  of  Patrick  Henry,  yet  in  the  Yirginia  Conven 
tion  he  devoted  his  fiery  eloquence  to  the  opposition  and 
he  was  ably  supported  by  George  Mason,  who  had  been 
a  member  of  the  convention  that  framed  the  Constitu 
tion,  had  had  great  influence  in  molding  its  final  form, 
and  yet  had  been  so  dissatisfied  with  it  that  he  refused 
to  sign  it.  On  the  other  side  was  Edmund  Eandolph, 
who  like  Mason  was  one  of  the  members  who  refused 
to  sign  the  Constitution,  but  who,  though  dissatisfied, 
had  become  convinced  that  it  was  preferable  to  the  evils 
and  dangers  under  the  Confederation.  With  him  was 
James  Madison,  a  resolute  supporter  from  the  first  of  the 
Constitution  which  he  too  had  helped  to  frame  and 
which  he  had  done  so  much  to  make  known  to  the  peo 
ple  in  that  series  of  papers,  unrivaled  in  the  literature  of 
the  world  for  masterly  discussion  of  the  principles  of 
government,  since  known  as  the  Federalist.  These  were 
the  leaders,  and  their  State  was  the  battle  ground  on  which 
for  a  time  depended  the  fate  of  the  Union.  Yirginia  was 


John  Marshall  Memorial.  464 

the  most  important  of  all  the  States.  Its  population  was  as 
large  as  that  of  Pennyslvania  and  New  York  combined, 
arid  included  nearly  one-fifth  of  the  whole  population  of 
the  thirteen  States.  Its  geographical  position  was  such  that 
its  refusal  to  enter  the  Union  would  have  cut  the  country 
in  two  so  evenly  that  it  might  almost  have  disputed  with 
Pennsylvania  the  title  of  the  Keystone  State.  Parties  in 
it  were  very  equally  divided.  Marshall  was  already  a 
Federalist.  His  military  experience,  as  we  have  from  him 
self,  had  accustomed  him  to  look  upon  the  whole  country 
as  one,  and  it  had  taught  him  how  real  and  how  danger 
ous  were  the  ills  that  menaced  that  country.  His  clear 
practical  sense  saw  the  weakness  of  the  Confederation 
and  made  him  thus  early  an  advocate  of  a  government 
strong  enough  to  protect  and  maintain  itself.  His  abid 
ing  faith  in  the  people's  patriotism,  constancy  and  innate 
love  of  liberty  deprived  the  spectre  of  imperialism  of 
its  terrors.  In  the  community  in  which  he  lived,  the  op 
ponents  of  the  Constitution,  the  State-rights  party,  or 
Kepublicans,  as  they  called  themselves,  were  largely  in 
the  majority.  But  his  neighbors  knew  and  esteemed 
John  Marshall,  and  they  wanted  him  as  their  representa 
tive  in  the  convention.  But  they  wanted  a  pledge  that 
he  would  vote  in  accordance  with  their  views.  This  he 
refused,  and  at  once  entered  the  canvass  with  a  bold  and 
resolute  announcement  of  his  convictions  and  his  action 
if  elected.  After  a  close  and  earnest  contest  he  was 
elected.  There  could  be  no  more  convincing  illustration 
of  the  unflinching  courage  and  integrity  of  the  man,  and 
the  weight  and  influence  of  his  character  among  the  peo 
ple  who  knew  him.  His  conduct  in  the  convention  was 
in  accordance  with  his  announced  views.  He  ranged 
himself  at  once  with  Madison  and  Edmund  Pendleton, 


465  Pennsylvania — Address  of  Justice  Mitchell. 

the  eloquent  Innes  and  Henry  Lee,  as  a  vigorous  and  un 
tiring  supporter  of  the  Constitution,  but  so  even  of  tem 
per,  so  conciliatory  of  manner,  and  of  such  strength  and 
force  of  argument  as  to  be  reckoned  among  the  foremost 
men  on  his  side.  Of  his  speeches  in  the  convention,  time 
only  permits  the  mention  of  one,  and  it  is  significant  of 
the  undercurrent  of  circumstances  that  was  even  then 
shaping  his  future  career.  The  judiciary  article  of  the 
Constitution  was  one  that  the  opponents  regarded  with 
special  animosity,  as  in  it  they  saw  the  Federal  arm  reach 
ing  across  State  lines  and  enforcing  the  central  authority. 
Marshall's  speeches  on  this  article  were  regarded  as  the 
ablest  and  most  convincing  presentations  of  the  necessity 
of  a  strong  and  independent  judiciary,  and  it  is  notable 
that  in  them  he  foreshadowed  the  great  question  that 
was  to  arise  later,  of  the  power  of  the  judiciary  to  declare 
an  act  of  Congress  unconstitutional.  George  Mason  had 
argued  that  the  Federal  tribunals  would  absorb  the  liti 
gation  of  the  country;  that  the  laws  of  the  United  States 
being  paramount  to  the  laws  of  the  particular  State, 
there  would  be  no  case  to  which  those  laws  might  not  be 
extended.  To  this  Marshall  replied  that  the  government 
of  the  United  States  could  not  go  beyond  their  delegated 
authority.  "If  they  were  to  make  a  law  not  warranted 
by  any  of  the  powers  enumerated,  it  would  be  considered 
by  the  judges  as  an  infringement  of  the  Constitution 
which  they  are  to  guard.  They  would  not  consider  such 
a  law  as  coming  under  their  jurisdiction.  They  would 
declare  it  void."  The  convention  accepted  the  Constitu 
tion  by  the  narrow  majority  of  ten,  and  not  the  least  of 
Marshall's  services  to  his  country  was  his  part  in  bring- 
ing  about  that  result.  The  required  nine  States  had 
adopted  the  Constitution  before  Virginia  came  to  a  final 
VOL.  I— 30" 


John  Marshall  Memorial.  466 

vote,  and  the  United  States  would  therefore  have  started 
even  if  that  vote  had  been  adverse.  But  without  Vir 
ginia  it  would  not  have  been  the  Union  as  our  fathers 
and  ourselves  have  known  it,  and  he  would  be  a  bold 
prophet  who  even  now  in  the  light  of  all  our  expe 
rience  would  undertake  to  say  that  it  would  have  en 
dured. 

The  next  few  years  were  given  to  practice  with  ever 
increasing  reputation.  In  public  matters  Marshall  con 
tinued  to  be  an  active  Federalist  and  especially  devoted 
to  the  defense  of  Washington's  administration.  At  pub 
lic  meetings  at  Richmond  he  debated  with  the  most  dis 
tinguished  opponents  the  President's  Proclamation  of 
Neutrality  between  England  and  France,  Jay's  treaty 
with  England,  the  treaty-making  power  of  the  President 
and  Senate,  and  the  duty  of  the  House  of  Representatives 
to  make  the  appropriations  necessary  to  give  the  treaties 
effect,  and  other  questions  of  most  serious  import,  on 
which  the  prevailing  sentiment  of  Yirginia  then  was  op 
posed  to  Washington's  policy. 

In  1796  he  came  to  Philadelphia  to  argue  the  great 
case  of  the  Yirginia  debts,  "Ware  v.  Hylton,  3  Dallas,  199. 
In  1777  Yirginia  had  passed  a  sequestration  act,  author 
izing  any  of  its  citizens  who  owed  money  to  British  sub 
jects  to  pay  it  into  the  loan  office  and  receive  a  discharge 
of  his  debt.  The  defendant,  being  indebted  on  a  bond  to 
plaintiff,  paid  the  amount  into  the  loan  office,  and  after 
the  treaty  of  peace  was  sued  on  the  bond  in  the  United 
States  Circuit  Court  of  Yirginia,  where  he  pleaded  the 
discharge,  and  it  was  held  to  be  a  full  defense.  The  case 
came  by  appeal  to  the  Supreme  Court,  then  sitting  in 
Philadelphia,  and  Marshall  was  pitted  against  three  of 


467  Pennsylvania — Address  of  Justice  Mitchell 

the  most  eminent  lawyers  at  this  bar,  William  Lewis, 
Edward  Tilghman  and  Alexander  Wilcocks.  He  defended 
first  the  right  of  Virginia  as  an  independent  State,  at  war 
against  Great  Britain,  to  confiscate  debts ;  secondly,  that  it 
had  done  so  by  the  Act  of  1777;  and  lastly,  that  the  debt, 
being  extinguished  by  confiscation  before  the  treaty,  could 
not  be  revived  by  it.  It  is  noticeable  that  Federalist  as 
he  was  he  argued  the  State-rights  view  even  of  the  third 
proposition.  But  he  put  it  upon  the  ground  that  article 
4  of  the  Treaty  of  1783,  "creditors  on  either  side  shall 
meet  with  no  lawful  impediment  to  the  recovery  of  the 
full  value  of  all  lona  fide  debts  heretofore  contracted," 
only  included  debts  existing  at  that  date,  and  here  the 
debt  was  no  longer  existing.  It  had  been  extinguished 
under  the  Virginia  act,  and,  if  any  remedy  existed  under 
the  treaty,  it  must  be  against  the  State  of  Virginia  which 
had  received  the  money.  He  did  not  sacrifice  his  views 
on  the  supremacy  of  national  authority  in  matters  of  for 
eign  relations,  but  put  his  argument  on  the  consistent 
ground  of  construction  of  the  treaty.  He  lost  his  case, 
but  gained  great  reputation  by  the  candor  and  strength 
of  his  argument.  By  it  his  reputation  as  a  lawyer,  which 
had  been  chiefly  confined  to  his  native  State,  spread  over 
the  whole  country. 

Since  his  retirement  from  the  Virginia  Legislature  he 
had  steadily  declined  public  office.  He  had  refused  the 
Attorney-Generalship  of  the  United  States  offered  to  him 
by  Washington  on  the  death  of  William  Bradford,  the 
position  of  Minister  to  France,  also  offered  by  Washing 
ton,  and,  on  the  death  of  James  Wilson,  the  vacant  seat 
on  the  Supreme  Court,  offered  to  him  by  President  Adams. 
Fortunately  his  time  for  this  had  not  yet  come.  He  de- 


John  Marshall  Memorial.  468 

clined  it  and  Bushrod  "Washington  was  appointed.  In  all 
his  career  there  is  nothing  more  notable  than  the  fact  that 
every  office  he  ever  held  was  offered  to  him  without  seek 
ing,  and  accepted  with  reluctance.  No  man  ever  took 
office  under  prouder  circumstances.  His  genuine  prefer 
ence  was  for  private  life  and  the  practice  of  his  profession. 

In  1798,  however,  the  state  of  affairs  between  the  United 
States  and  France  had  become  so  threatening  that  he  was 
persuaded  by  President  Adams  to  accept  the  special  mis 
sion  to  France  in  the  interest  of  peace,  with  Charles  Cotes- 
worth  Pinckney  and  Elbridge  Gerry.  The  rude  and  in 
sulting  treatment  which  the  envoys  received  from  the 
French  Directory  is  one  of  the  most  painful  episodes  in 
our  history,  but  it  is  redeemed  from  humiliation  by  the 
dignified  firmness  of  our  envoys.  Marshall  wrote  the 
dispatches  to  his  government,  and  they  gave  universal  sat 
isfaction.  "As  State  papers,"  says  Judge  Story, "  there  are 
not  in  the  annals  of  our  diplomacy  any  upon  which  an 
American  can  look  back  with  more  pride."  On  his  return 
he  was  received  with  popular  enthusiasm.  As  he  ap 
proached  Philadelphia,  where  Congress  was  in  session, 
the  city  cavalry  and  a  procession  of  citizens  met  him  at 
Frankford  and  escorted  him  into  the  city.  Congress  gave 
him  a  public  dinner,  at  which  the  famous  reply  of  Pinck 
ney  was  first  put  into  the  popular  form  it  has  ever  since 
retained. 

The  envoys  having  had  it  hinted  to  them  in  no  uncer 
tain  terms  that  if  they  expected  to  be  recognized  they 
must  offer  a  bribe  to  the  Directory,  had  plainly  refused, 
and  on  being  sneeringly  asked  by  Talleyrand's  agent  if 
the  Americans  were  too  poor  to  pay  a  little  money,  had 
replied  through  Pinckney,  "America  has  millions  for  de 
fense,  but  not  a  cent  for  tribute." 


469  Pennsylvania — Address  of  Justice  Mitchell 

I  doubt  if  any  of  my  hearers  under  middle  age  can 
fully  appreciate  the  potency  of  that  saying.  In  their 
time  the  United  States  has  been  too  great  and  too  strong 
for  its  standing  in  the  community  of  nations  to  be  ques 
tioned.  But  in  1798  its  position  was  far  different.  The 
sanctity  of  its  flag  on  the  ocean  was  insolently  violated 
by  England  in  its  asserted  right  of  search  for  seamen,  and 
remonstrances  were  disregarded  almost  with  contempt 
uous  avowal  that  what  consideration  they  received  was 
due  more  to  concern  about  Napoleon  than  to  recognition 
of  our  rights.  The  causes  which  produced  the  war  of 
1812,  justly  called  the  second  war  of  independence,  were 
already  in  active  operation.  On  the  other  hand  the  con 
duct  of  France  was  equally  contemptuous.  The  insolence 
of  Genet  had  led  to  his  recall  only  under  the  firm  demand 
of  "Washington,  and  the  French  government,  instead  of 
relying  on  the  gratitude  of  the  American  people  for  the 
assistance  of  France  in  the  revolution,  had  demanded  aid 
as  a  right,  and  strained  almost  to  the  breaking  point  the 
forbearance  even  of  the  Republicans  who  sympathized 
with  her.  The  treatment  of  our  envoys  has  been  already 
mentioned,  and  the  firmness  and  dignity  of  their  conduct 
was  approved  by  all  parties.  The  effect  of  Pinckney's 
saying  was  electrical.  It  struck  the  popular  heart  and 
became  almost  a  popular  war  cry.  Medals  and  tokens 
bearing  that  legend  were  struck  off  in  great  numbers,  and 
down  even  to  my  early  days  a  boy's  handful  of  coppers 
was  apt  to  contain  at  least  one  token  that  passed  current 
everywhere  as  a  cent,  but  bearing  the  words,  "  Not  a  cent 
for  tribute,  millions  for  defense."  The  conduct  of  Mar 
shall  won  the  approval  even  of  his  political  opponents. 
Patrick  Henry,  one  of  the  most  vigorous  of  them,  wrote. 


John  Marshall  Memorial.  470 

"  Tell  Marshall  I  love  him  because  he  felt  and  acted  as  a 
Republican,  as  an  American." 

In  1799,  at  the  earnest  solicitation  of  Washington,  who 
in  view  of  the  expected  war  with  France  had  again  ac 
cepted  the  command  of  the  army,  Marshall  became  candi 
date  for  Congress  and  was  elected.  His  earliest  duty  in 
that  post  was  the  sad  one  of  announcing  the  death  of 
Washington,  which  he  did  in  a  short  speech  of  great 
power  and  pathos,  ending  with  the  resolutions  declaring 
Washington  the  first  in  war,  first  in  peace,  and  first  in  the 
hearts  of  his  countrymen. 

In  1800,  President  Adams  offered  him  the  post  of  Sec 
retary  of  War,  but  before  he  could  assume  office  the  Sec 
retaryship  of  State  became  vacant,  and  was  accepted  by 
Marshall.  The  ability,  firmness  and  moderation  with 
which  he  held  the  United  States  to  a  position  of  neutral 
ity  under  the  difficulties,  foreign  and  domestic,  of  the 
situation,  commanded  the  admiration  of  his  contempo 
raries  and  completed  his  reputation  as  a  statesman.  In 
his  letter  of  instructions  to  Rufus  King,  our  Minister  to 
England,  he  wrote,  "  The  United  States  do  not  hold  them 
selves  in  any  degree  responsible  to  France  or  to  Great 
Britain  for  their  negotiations  with  one  or  the  other  of 
those  powers,  but  they  are  ready  to  make  amicable  and 
reasonable  explanations  to  either.  The  aggressions,  some 
times  of  one  and  sometimes  of  another  belligerent  power, 
have  forced  us  to  contemplate  and  prepare  for  war  as  a 
probable  event.  We  have  repelled,  and  we  will  continue 
to  repel,  injuries  not  doubtful  in  their  nature,  and  hos 
tilities  not  to  be  misunderstood.  But  this  is  a  situation 
of  necessity,  not  of  choice ;  it  is  one  in  which  we  are  placed, 
not  by  our  own  acts,  but  by  the  acts  of  others,  and  which 


471  '   Pennsylvania — Address  of  Justice  Mitchell. 

we  will  change  as  soon  as  the  conduct  of  others  will  per 
mit  us  to  change  it." 

Marshall  continued  to  fill  the  office  of  Secretary  of  State 
until  the  end  of  the  Adams  administration  in  March, 
1801,  but  on  the  resignation  of  Chief  Justice  Ellsworth 
and  the  declination  of  Jay  to  resume  the  office,  Marshall 
was  appointed  and  entered  upon  the  duties  one  hundred 
years  ago  to-day. 

The  Constitution  of  the  United  States  was  the  first  in 
stance  in  the  history  of  the  world  where  the  whole  frame 
work  of  a  national  government  was  rested  upon  and  em 
bodied  in  a  written  instrument.  Leagues  and  confedera 
tions  there  had  been  from  the  dawn  of  history,  based 
upon  treaties  and  sanctions  of  various  kinds,  but  resting 
finally  on  voluntary  good  faith  or  force,  the  ultima  ratio 
regum.  But  of  governments  this  was  the  first.  It  had 
no  precedent,  as  it  has  had  no  successor  that  was  not  a 
copy.  The  germ  of  the  system  was  undoubtedly  found 
in  the  colonial  charters  by  which  powers  of  government 
more  or  less  ample  were  conceded  to  the  settlers  of  the 
colonies  which  by  the  Ke volution  had  become  independ 
ent  States.  The  men  who  framed  the  Constitution,  in 
common  with  their  associates  in  public  life,  were  versed 
in  the  history  and  the  principles  of  free  government  as 
perhaps  no  other  body  has  ever  been.  They  had  deeply 
studied  the  writings  of  the  fathers  of  political  thought 
from  Aristotle,  through  Macchiavelli,  and  Milton  and 
Locke,  down  to  Montesquieu.  One  of  their  contempo 
raries  had  but  a  few  years  before  penned  a  declaration 
of  the  rights  of  man  in  terms  of  imperishable  force  and 
beauty. 

The  Constitution,  though  it  had  no  precedent,  was 


John  Marshall  Memorial.  472 

framed  on  the  principles  of  English  liberty  by  men  who 
knew  them,  both  in  theory  and  in  practice.  They  had 
studied  English  history  and  English  law,  and  they  worked 
in  the  light  of  both.  Blackstone's  first  volume  was  pub 
lished  in  1T65,  and  Edmund  Burke  has  recorded  that  a 
leading  London  publisher  had  sold  more  copies  in  the 
colonies  than  in  England.  The  common  law  of  England 
is  the  most  nearly  perfect  system  of  remedial  justice  be 
tween  man  and  man,  and  of  effectual  safeguards  of  lib 
erty  with  order,  between  sovereign  and  subject,  that  the 
world  has  ever  seen.  And  its  noblest  and  most  legiti 
mate  daughter  is  the  Constitution  of  the  United  States. 
The  feature  of  the  Constitution  which  is,  or  was,  its  nov 
elty,  as  well  as  its  crowning  excellence,  is  the  clear  line 
it  drew  between  the  different  functions  and  powers  of 
government.  The  wonder  and  despair  of  foreign  jurists 
to  understand  is  the  complicated  but  perfectly  adjusted 
balance  in  the  division  of  powers  between  the  Federal 
Government  and  the  States,  the  imperium  in  imperio 
which  leaves  to  each  State  the  general  regulation  of  do 
mestic  affairs  touching  its  citizens  in  their  daily  life,  yet 
vests  in  the  United  States  such  direct  contact  and  control 
as  replace  the  weakness  of  the  Confederation  and  substi 
tute  powers  of  self-protection,  brought  home  to  the  people 
in  their  individual  capacity  so  that  they  are  made  to  feel 
that  the  Union  is  as  much  their  government  as  is  that  of 
the  State  in  which  they  live,  and  yet  without  any  thought 
of  clash  of  jurisdiction.  '  Familiar  to  us  as  a  tale  that  is 
told,  we  are  apt  to  forget  the  perfection  of  the  unprece 
dented  achievement,  the  knowledge  and  discrimination 
with  which  the  separation  was  conceived  in  theory,  and 
the  clear  and  abiding  judgment  with  which  the  lines  of 
demarcation  were  laid  down  in  practice.  The  latter  was 
largely  the  work  of  John  Marshall. 


473  Pennsylvania — Address  of  Justice  Mitchell. 

The  distinction  between  the  powers  of  government,  as 
legislative,  executive,  and  judicial,  was  evolved  in  prac 
tice  from  the  long  struggles  of  English  liberty,  and  came 
to  us  as  an  inheritance.  It  was  put  into  philosophic  form 
by  the  brilliant  Montesquieu  from  his  admiring  contem 
plation  of  English  history.  But  it  was  never  before  so 
clearly  and  firmly  drawn  as  in  the  Constitution.  Eng 
land  made  her  judges  personally  and  politically  inde 
pendent,  but  the  Constitution  of  the  United  States  first 
made  the  judiciary  as  a  department  of  the  government 
not  only  independent,  but  equal,  and,  therefore,  supreme 
within  its  own  province. 

The  conception  of  a  judicial  department  was  a  logical 
necessity  of  the  scheme  of  government  which  the  conven 
tion  had  projected.  Without  it  many  of  the  most  serious 
defects  of  the  Confederation  would  still  remain.  But 
the  form  which  it  should  receive  was  the  subject  of  anx 
ious  thought  and  much  difference  of  opinion.  The  most 
imminent  danger  to  be  guarded  against  was  from  the 
States,  any  one  of  which  might  at  any  time  pass  a  law 
contrary  to  the  Constitution.  How  should  such  a  law 
be  rendered  harmless?  It  was  proposed  that  Congress 
should  have  a  veto  upon  the  laws  enacted  by  the  States. 
But  it  was  at  once  foreseen  that  the  exercise  of  this  veto 
would  be  subject  to  political  influences  and  passions, 
and  would  lead  to  a  direct  and  open  conflict  between 
Congress  and  the  State  Legislature.  Another  plan  was 
to  establish  a  council  of  revision,  to  be  composed  partly 
of  the  executive  and  partly  of  the  Federal  judiciary,  to 
whom  this  veto  power  should  be  intrusted.  This  plan 
was  analogous  to  the  system  with  which  the  people  were 
already  familiar.  In  Pennsylvania  and  most  if  not  all 
of  the  other  colonies  having  popular  legislative  assem- 


John  Marshall  Memorial.  474 

blies,  the  Crown,  acting  through  the  Judicial  Committee 
of  the  Privy  Council,  exercised  the  power  of  annulling  or 
refusing  assent  to  the  acts  of  such  assemblies.  But  this 
power,  though  admitted  and  unquestionable  by  the  colo 
nies,  led  to  protracted  disputes.  There  is  no  more  inter 
esting  and  instructive  chapter  in  Pennsylvania  history 
than  the  persistent,  unremitting  and  ingenious  efforts  of 
the  Assembly  to  have  its  own  way  by  the  re-enactment, 
often  in  forms  only  colorably  varied,  of  statutes  set  aside 
by  the  Privy  Council.  Such  a  conflict  between  a  State 
and  Congress  was  full  of  foreboding  of  peril. 

But  the  danger  of  departure  from  the  Constitution 
was  not  alone  to  be  apprehended  from  the  States.  The 
executive  vested  in  a  single  head  might  usurp  powers  be 
yond  even  its  ample  constitutional  authority.  Out  of 
such  usurpation  had  come  the  dictators,  the  kings  and 
emperors  of  the  past.  And  again  Congress  was  not  to 
be  left  altogether  without  restraint.  The  legislative 
branch,  which  holds  the  Nation's  purse,  is  always  the 
most  powerful  in  a  free  government.  The  colonists  had 
fought  George  the  Third,  but  the  Convention  did  not 
forget  that  his  Parliament  was  as  tyrannical  as  the  king. 

Out  of  all  these  most  serious  considerations  came 
finally  the  establishment  of  a  single  Supreme  Court  with 
jurisdiction  over  all  questions  arising  under  the  Constitu 
tion  and  laws  of  the  United  States.  The  honor  of  having 
proposed  the  plan  which  was  substantially  adopted  be 
longs  to  "William  Paterson  of  New  Jersey,  afterwards  a 
justice  of  the  court  he  was  thus  instrumental  in  creating. 

The  court  thus  established,  though  the  logical  and 
perhaps  inevitable  outcome  of  the  traditions,  the  ideas 
and  the  circumstances  of  the  men  who  made  it,  was 
nevertheless  a  bold  and  unprecedented  conception.  For 


475  Pennsylvania  —  Address  of  Justice  Mitchell. 

the  first  time  in  history  a  co-ordinate  branch  of  a  sov 
ereign  government,  it  was  yet  the  weakest  branch.  More 
independent,  less  directly  responsible  either  to  the  other 
departments  or  to  the  people  at  large,  yet  holding  neither 
the  purse  nor  the  sword,  its  authority  depends  wholly 
upon  reason.  But  how  transcendent  is  its  authority,  to 
mark  the  limits  of  legislative  and  executive  power;  to 
administer  the  law  and  give  commands  not  only  to  in 
dividuals,  but  to  Presidents  and  Congresses;  to  sit  in 
judgment  on  the  proceedings  and'  privileges  of  sovereign 
States;  and  to  give  final  form  and  effect  to  the  great 
charter  of  the  Union,  on  which  the  rights,  the  peace,  the 
harmony,  the  prosperity,  safety  and  honor  of  the  whole 
country  depend.  Well  did  De  Tocqueville  say,  "  a  more 
imposing  judicial  power  was  never  constituted  by  any 
people.  The  Supreme  Court  is  placed  at  the  head  of  all 
known  tribunals,  both  by  the  nature  of  its  rights,  and  the 
class  of  justiciable  parties  which  it  controls."  It  was  a 
conception  worthy  of  a  free  people,  and  possible  only  to 
a  people  convinced  beyond  all  doubt  or  hesitation  that 
lasting  and  orderly  liberty  can  exist  only  in  complete 
subordination  to  law.  "  None  but  a  law-fearing  people," 
says  Prof.  Dicey,  "  will  be  inclined  to  regard  the  decision 
of  a  suit  as  equivalent  to  the  enactment  of  a  law.  The 
main  reason  why  the  United  States  has  carried  out  the 
Federal  system  with  unqualified  success  is  that  the  people 
of  the  Union  are  more  thoroughly  imbued  with  legal 
ideas  than  any  other  existing  nation." 

Into  this  great  tribunal  as  its  chief,  one  hundred  years 
ago  to-day,  came  John  Marshall,  henceforth  forever  to  be 
identified  with  it  as  the  embodiment  and  greatest  expo 
nent  of  its  judicial  thought. 


John  Marshall  Memorial.  476 

The  justices  of  the  Supreme  Court  need  to  be  jurists  in 
the  wide  sense  of  that  term  as  distinguished  from  mere 
lawyers,  however  learned,  and  they,  especially  the  Chief 
Justice,  should  be  statesmen  with  a  broad  appreciation 
of  the  bearing  of  even  technical  questions  of  law,  upon 
the  fundamental  principles  of  government,  the  polity  and 
the  course  of  events  in  the  country.  Let  us  look  for  a 
moment  at  Marshall's  wide  and  varied,  though  uncon 
scious,  training  for  such  place.  Nihil  simul  inventum 
est  etperfectum,  in  the  quaint  expression  and  always  in 
teresting  aphorisms  of  Coke.  Even  the  powers  of  John 
Marshall  did  not  spring  like  Minerva,  full  grown,  from 
the  brain  of  Jove,  but  year  after  year,  like  the  tree  that  is 
planted  in  fertile  ground,  grew  to  maturity  alike  through 
sunshine  and  storm.  His  substantial  military  service  in 
his  youth  had  matured  and  sharpened  his  perceptions, 
his  energies,  his  resolution,  the  practical  faculties  of  life; 
his  service  of  years  in  the  Virginia  Legislature  had  made 
him  familiar  with  public  questions  of  government  and 
policy,  and  later  he  had  studied  legislative  matters  in  the 
broader  field  of  Congress;  as  a  member  of  the  Virginia 
State  Council  he  had  learned  to  consider  methods  of  ad 
ministration  as  well  as  of  legislation,  and  this  experience 
was  again  widened  in  the  National  Cabinet  as  Secretary 
of  State ;  and  his  service  as  Envoy  to  Erance  had  shown 
him  the  devious  ways  of  diplomacy.  But  where  in  all 
this  busy  life  did  he  find  time  for  the  learning  and  knowl 
edge  of  the  law  ?  His  training  even  in  the  routine  of 
litigation  was  not  inconsiderable.  He  was  by  choice  and 
desire  a  lawyer,  he  maintained  his  position  at  tne  bar  un 
interruptedly  as  far  as  compatible  with  the  full  perform 
ance  of  his  public  duties,  and  he  returned  to  practice 
promptly  at  every  opportunity.  That  he  was  profoundly 


477  Pennsylvania — Address  of  Justice  Mitchell. 

versed  in  legal  principles  is  manifest  in  every  page  that 
he  ever  wrote.  He  worked  on  them  and  from  them  al 
ways.  But  if  we  speak  of  technical  knowledge  of  cases 
and  precedents,  and  the  law  as  laid  down  by  the  voice 
of  authorit}^  let  us  say  frankly  he  has  been  surpassed  by 
many  others.  He  had  not  the  learning  of  Kent,  or  of 
our  own  Tilghman,  or  of  his  most  learned  successor, 
Taney.  But  he  had  that  which  for  his  time  and  place 
served  him  far  better,  the  lawyer's  instinctive  percep 
tion,  an  unerring  logic  in  reasoning,  and  a  vigor  of  intel 
lect  that  went  per  saltum  where  others  had  to  climb 
laboriously  through  the  maze  of  decisions.  It  is  related 
of  him  by  high  authority  that  not  unfrequently  at  the 
end  of  a  long  and  close  argument  on  some  intricate  and 
knotty  question,  listened  to  with  most  exemplary  pa 
tience,  he  would  turn  cheerfully  to  his  younger  colleague 
and  say,  "  Well,  Story,  the  law  is  so  and  so  —  look  up  the 
authorities  and  see  if  it  isn't."  And  that  learned  and 
accomplished  book-lawyer  always  found  that  the  Chief 
Justice  was  right.  No  man  of  equal  eminence  ever  owed 
less  to  teaching  and  to  what  is  usually  called  education. 
But  no  man  ever  had  his  natural  powers  more  perfectly 
developed  by  experience  in  the  school  of  life,  leading  up 
to  his  crowning  work.  Fortunately  the  questions  with 
which  he  had  to  deal  required  less  book-learning  than 
wide  grasp  of  principles.  The  Constitution  is  expressed 
with  remarkable  compactness  in  general  terms,  and  it 
has  been  well  said  that  it  is  "  an  enumeration  of  powers, 
not  a  definition  of  them."  The  definition  of  them  was 
to  be  the  work  of  Marshall  and  the  court.  When  at  the 
age  of  forty-five  he  took  his  seat  upon  the  bench,  little 
did  he  or  his  contemporaries  anticipate  that  his  distin 
guished  public  career  of  a  quarter  of  a  century  was  to  bo\ 


John  Marshall  Memorial.  478 

so  completely  overshadowed  that  it  requires  the  special 
study  of  this  occasion  to  recall  its  extent,  its  variety  and 
its  eminent  usefulness. 

In  1801,  so  little  had  the  importance  of  the  position 
been  perceived  that  the  learned,  accomplished  and  patri 
otic  Jay  thought  himself  going  to  rust  in  the  Chief  Jus 
ticeship,  preferred  to  be  Governor  of  New  York,  and 
finally  resigned  to  go  as  envoy  to  England.  The  court 
has  as  yet  made  but  little  impression  on  the  jurisprudence 
of  the  country.  The  powers  and  limitations  of  the  Con 
stitution  had  been  discussed,  often  with  partisan  heat  and 
violence,  in  legislatures  and  conventions,  but  no  prin 
ciples  of  construction  had  been  judicially  settled,  and  the 
decision  of  the  Supreme  Court  in  the  only  important  case 
that  had  yet  come  before  it,  Chisholm  v.  State  of  Georgia, 
2  Dall.  419,  in  which  it  was  held  that  a  State  might  be 
made  defendant  in  the  Federal  courts  at  the  suit  of  an 
individual,  had  not  only  roused  the  wrath  of  the  State- 
rights  party,  but  so  startled  even  the  Federalists,  that  it 
led  to  an  amendment  of  the  Constitution.  But  questions 
were  already  looming  up,  full  of  ominous  import,  which 
could  not  be  long  delayed;  questions  of  the  inherent 
powers  of  the  States  as  sovereignties,  how  far  they  had 
been  surrendered  to  the  central  government,  how  far 
they  had  been  retained,  how  far  they  were  exclusive  in 
one  or  the  other  or  might  be  exercised  concurrently; 
questions  of  the  obligation  of  contracts,  including  char 
tered  rights  and  their  protection  by  the  Federal  courts 
from  impairment  by  the  States;  questions  of  the  regula 
tion  of  commerce  and  the  navigation  of  rivers  between 
States  and  with  foreign  countries,  as  against  State  laws; 
questions  of  the  restraints  upon  the  issue  of  money  by 


479  Pennsylvania  —  Address  of  Justice  Mitchell. 

the  States,  and  of  taxation  by  the  States  of  Federal  of 
fices,  or  corporations;  questions  of  jurisdiction  between 
State  and  Federal  courts,  including  the  control  of  State 
courts  over  Federal  officers,  and  the  revision  by  the  Fed 
eral  courts  of  the  decisions  of  State  courts  on  constitu 
tional  questions.  And  underlying  all  these  was  the  fun 
damental  question  on  which  the  solution  of  all  of  them 
was  largely  to  depend,  the  strict  or  the  liberal  construction 
of  the  Constitution  as  an  entire  instrument.  Kone  of 
these  questions  had  been  decided  and  there  were  no  prece 
dents  to  guide  the  decision.  The  science  of  constitu 
tional  law,  as  now  known  to.  us,  had  as  yet  no  existence. 
Under  the  institutions  first  inherited  from  the  mother 
country,  and  then  made  the  models  on  which  our  OWP 
were  reconstructed,  lawyers  and  judges  had  been  trained 
to  view  the  legislative  power  vested  in  Parliament  as  in 
fallible  and  omnipotent.  That  first  lesson  had  to  be  un 
learned,  and  a  new  field  of  jurisprudence  opened. 

Into  this  untrodden  field  the  new  Chief  Justice  entered 
with  the  firm  step  of  conscious  strength,  trusting  to  his 
own  clear  perceptions  and  honest  singleness  of  purpose 
to  find  the  way.  And  how  plain  and  broad  and  straight 
the  way  seems  when  he  has  once  pointed  it  out. 

Let  me  take  one  general  illustration,  the  great  question 
which  as  I  have  said  underlies  all  the  others,  that  of  the 
strict  or  liberal  construction  of  the  Constitution  as  an 
entire  instrument.  It  had  been  the  subject  of  earnest, 
sincere  and  settled  difference  of  opinion  among  some  of 
the  wisest  statesmen  of  the  day,  and  perhaps  even  more 
frequently  of  partisan  and  violent  dispute.  It  may  be 
said  that  it  exists  yet  and  will  always  exist,  for  it  is  in 
herent  in  the  nature  of  the  subject,  the  imperfection  of 
language,  and  the  varying  temperaments  of  those  who 


John  Marshall  Memorial.  480 

interpret  it.  In  statutes,  in  private  contracts,  and  most 
of  all  in  wills,  it  is  part  of  the  lawyer's  daily  work  to 
ask,  Shall  we  adhere  to  the  letter,  or  shall  we  look  be 
yond  it  for  the  intent?  The  States,  said  the  strict  con- 
structionists,  the  State-rights  party,  are  independent 
sovereignties,  the  source  of  all  political  power;  for  cer 
tain  expressed  purposes  they  have  transferred  limited  por 
tions  of  that  power  to  the  Union,  but  in  so  doing  they 
have  only  appointed  an  agent,  and  such  agent  has  no 
power  not  literally  within  the  terms  of  his  appointment; 
if  authority  is  not  shown  in  express  words,  it  does  not 
exist.  The  United  States,  said  the  Federalists  on  the 
other  side,  is  not  a  mere  league,  but  a  government;  with 
delegated  and  limited  powers  it  is  true,  but  nevertheless 
a  government,  and  possessed  of  all  powers  inherent  in 
the  conception  of  a  government,  unless  expressly  with 
held  or  prohibited  in  the  instrument  creating  it.  The 
Chief  Justice  took  up  the  question  in  the  very  essence  of 
judicial  spirit.  In  politics  he  had  been  a  life-long  Fed 
eralist,  and  the  champion  of  their  views  in  many  hard- 
fought  contests.  But  as  a  judge  he  saw  only  with  the 
clear  light  of  the  law.  The  Constitution,  he  said,  was 
to  have  neither  a  liberal  nor  a  strict  construction,  but  a 
natural  one,  according  to  the  intention  as  shown  by  the 
words  understood  in  their  natural  and  usual  meaning. 
The  Union  was  a  government  of  delegated  powers.  There 
fore,  when  any  power  was  claimed,  the  warrant  for  it 
should  be  clearly  shown  in  the  Constitution,  and  to  that 
extent  the  construction  must  be  strict.  But  though  only 
of  delegated  powers,  it  was  nevertheless  a  government, 
and  must  possess  the  full  measure  of  all  the  powers  in 
tended  to  be  given.  Therefore  the  construction  must  be 
liberal  as  to  every  means  of  exercising  the  powers  given 


481  Pennsylvania— Address  of  Justice  Mitchell. 

with  full  effect.  How  plain  and  how  easy  the  solution 
seems  when  once  it  is  said.  Do  not  even  my  unprofes 
sional  hearers  see  what  plain  common  sense  it  is?  A 
platitude  that  even  the  incipient  law  student  could  an 
swer  off-hand.  But  when  John  Marshall  first  said  it,  it 
was  new,  and  it  is  a  platitude  to-day  because  he  said  it  in 
such  terms  that  no  man  could  fail  to  see  its  solid  good 
sense,  the  foundation  of  all  permanent  law. 

In  this  spirit  the  Chief  Justice  took  up  the  varied  ques 
tions  as  they  arose,  and  discussed  and  decided  them.  Time 
and  the  limitations  of  a  spoken  address  do  not  permit 
even  a  bare  enumeration  of  the  cases  as  they  arose,  or  the 
points  they  involve;  but  speaking  to-day  as  a  lawyer  to 
lawyers,  I  may  make  brief  reference  by  way  of  illustra 
tion  only  to  a  few  of  them. 

Marbury  v.  Madison,  1  Cranch,  137,  was  the  first  and 
in  some  respects  the  most  important  of  the  cases  I  shall 
mention.  Marbury  was  appointed  a  justice  of  the  peace 
in  the  District  of  Columbia  by  President  Adams,  was  con 
firmed  by  the  Senate,  his  commission  signed  by  the  Presi 
dent  and  passed  under  the  seal  of  the  State  Department, 
but  before  it  was  delivered  the  administration  changed, 
and,  under  instructions  from  President  Jefferson,  Secre 
tary  Madison  refused  to  deliver  it.  The  suit  was  for  a 
mandamus  to  compel  delivery.  The  court  held  that  it 
had  no  original  jurisdiction  except  that  fixed  by  the  Con 
stitution,  and  that  the  Act  of  Congress  giving  it  jurisdic 
tion  in  such  cases  was  to  that  extent  void.  The  case  is 
notable  in  that  holding  that  it  had  no  jurisdiction  to  issue 
such  a  writ,  the  court's  opinion  on  Marbury's  title  to  the 
office,  and  the  power  of  the  judiciary  to  compel  the  per 
formance  of  duty  by  executive  officers,  was  obiter.  But 
VOL.  1—31 


John  Marshall  Memorial.  482 

the  Chief  Justice,  stating  that  the  novelty  and  delicacy 
of  some  of  the  questions  required  a  complete  exposition 
of  the  principles  on  which  the  opinion  of  the  court  was 
founded,  entered  into  the  subject  at  large,  and  vindicated 
the  power  of  the  court  to  declare  an  Act  of  Congress 
void  for  unconstitutionality.  This  point  had  been  decided 
more  or  less  explicitly  before.  Indeed,  it  was  a  necessary 
conclusion  from  the  equality  of  the  judiciary  as  a  co-ordi 
nate  branch  of  the  government.  But  it  encountered  very 
resolute  and  even  passionate  political  resistance,  both  from 
the  legislative  and  the  executive  branches,  had  been 
touched  tenderly  and  with  reluctance,  even  by  Marshall 
himself  in  the  debates  on  the  Constitution,  and  had  never 
commanded  general  acquiescence,  nor  received  an  au 
thoritative  exposition.1 


following  very  complete  note  of  the  prior  cases  I  am  in 
debted  to  Ardemus  Stewart,  Esq.,  of  the  Philadelphia  Bar.  Comm. 
v.  Caton,  4  Call,  5  (Va.,  1782);  Cases  of  the  Judges  of  the  Court  of 
Appeals,  4  Call,  135  (Va.,  1788);  Trevett  v.  Weedon  (R.  I,  1786),  Ar 
nold's  Hist,  of  R.  I,  vol.  2,  ch.  24,  and  see  Cooley's  Constitutional 
Limitations,  193,  n.  3;  Den  on  Demise  of  Bayard  v.  Singleton.  1  Mar 
tin,  48  (N.  C.,  1787);  Ogden  v.  Witherspoon,  2  Hay  ward,  227  (N.  C., 
1799);  Bowman  v.  Middleton,  1  Bay,  252  (S.  C.,  1792);  Austin's  Lessee 
v.  Trustees,  etc.  (Pa.,  1793),  referred  to  in  Emerick  v.  Harris,  1  Bin- 
ney,  416;  case  of  Holmes  and  Walton,  and  Taylor  v.  Reading,  in  New 
Jersey,  cited  by  Kirkpatrick,  C.  J.,  in  State  v.  Parkhurst,  4  Halsted 
(9  N.  J.  Law),  427;  Van  Home  v.  Dorrance,  2  Dall.  304  (1795). 

On  April  5,  1792,  the  Circuit  Court  for  the  District  of  New  York, 
consisting  of  Chief  Justice  Jay,  Justice  Cushing,  and  Duane,  District 
Judge,  declared  it  as  their  unanimous  opinion  that  the  pension  law 
passed  by  Congress  on  March  23,  1792,  was  invalid,  because  it  at 
tempted  to  assign  to  the  judicial  department  duties  which  were  not 
judicial;  on  June  8,  1792,  the  Circuit  Court  for  the  District  of  North 
Carolina  made  a  similar  declaration  in  a  joint  letter,  addressed  to 
the  President  of  the  United  States;  and  on  April  18,  1792,  the  Cir 
cuit  Court  for  the  District  of  Pennsylvania  addressed  a  similar  joint 


483  Pennsylvania  —  Address  of  Justice  Mitchell. 

The  court,  however,  went  a  step  farther  and  asserted 
the  duty  and  power  of  the  judiciary  to  compel  obedience 
to  the  law  in  all  matters  not  political  or  discretionary, 
even  by  the  highest  executive  officers.  This  decision 
was  of  transcendent  importance  in  establishing  the  prin 
ciples  on  which  all  our  present  views  of  constitutional 
law  rest.  It  settled  once  for  all  that  the  Constitution 
had  created  a  government  of  law,  and  it  established  the 
authority  of  the  court  on  a  footing  never  since  shaken, 
as  the  final  interpreter  of  the  Constitution  and  the  su 
preme  tribunal  for  the  settlement  of  all  matters,  even 
though  touching  the  other  departments,  that  are  judicial 
in  their  nature. 

In  United  States  v.  Peters,  5  Cranch,  115,  a  conflict  of 
jurisdiction  had  arisen  between  the  Pennsylvania  and 
the  Federal  courts  of  admiralty  over  a  question  of  prize, 
and  Judge  Peters  had  been  reluctant  to  enforce  a  judg 
ment  which  might  bring  on  a  collision.  But  the  Supreme 
Court  without  hesitation  laid  down  the  rule  of  the  supe- 

letter  to  the  President.  Somewhat  later  in  the  same  year  the  Su 
preme  Court  of  the  United  States,  in  Hayburn's  Case  (1792),  2  Dall. 
409,  refused  to  carry  the  act  into  effect. 

In  Emerick  v.  Harris  (1808),  1  Bin.  (Pa.)  416,  the  right  of  the  courts 
to  pass  upon  the  constitutionality  of  an  act  of  the  Legislature  was 
asserted,  though  the  act  in  question  was  held  to  be  constitutional. 
Mr.  Justice  Yeates  stated  that  Marbury  v.  Madison  was  not  pub 
lished  until  after  his  opinion  had  been  prepared. 

The  constitutionality  of  statutes  had  been  argued  without  expressly 
stating  the  power  of  the  court  to  declare  them  void,  if  unconstitu 
tional,  in  several  other  cases,  e.  g.,  Hylton  v.  United  States  (1796),  3 
Ball.  (U.  S.)  171,  where  the  statute  was  held  constitutional,  and  Res- 
publica  v.  Cobbett  (1798);  Respublica  v.  Duguet  (1799),  and  Respub- 
lica  v.  Franklin  (1802),  unreported  cases  in  the  Supreme  Court  of 
Pennsylvania,  cited  by  Mr.  Justice  Yeates  in  his  opinion  in  Emerick 
v.  Harris  (1808),  1  Bin.  (Pa.)  416,  422. 


John  Marshall  Memorial.  484 

rior  authority  of  the  Federal  courts  and  the  total  invalid 
ity  of  State  statutes  interfering  with  it. 

In  Fletcher  v.  Feck,  6  Cranch,  87,  the  clause  of  the 
Constitution  prohibiting  the  States  from  the  passage  of 
any  law  impairing  the  obligation  of  contracts  was  con 
strued  and  applied  to  grants  of  land  by  a  State.  In  The 
State  of  New  Jersey  v.  Wilson,  Y  Cranch,  164,  the  same 
clause  was  held  to  prevent  a  State  taxing  lands  which 
had  been  purchased  by  the  colony  under  convention  with 
the  Indians,  with  an  agreement  that  they  should  not  be 
taxed  thereafter.  And  in  Trustees  of  Dartmouth  College 
v.  Woodward,  4  Wheaton,  518,  the  same  clause  received 
a  masterly  and  final  exposition  and  extension  to  the  pro 
tection  of  the  charter  of  a  private  corporation.  This  is 
perhaps  the  most  noted  of  all  Marshall's  decisions,  on  ac 
count  of  the  wide  public  interest  it  excited,  its  far-reach 
ing  consequences,  and  the  eminence  of  the  counsel  on 
both  sides,  including  Joseph  Hopkinson,  Daniel  Webster 
and  William  Wirt. 

In  Sturges  v.  Crowninshield,  4  Wheaton,  122,  the  im 
pairment  of  the  obligation  of  contracts  was  further  con 
sidered  in  connection  with  the  authority  of  the  States  to 
pass  insolvency  and  bankruptcy  acts  not  in  conflict  with 
a  national  bankruptcy  law. 

McCulloch  v.  State  of  Maryland,  4  Wheaton,  316,  was 
a  case  of  great  importance.  Congress  had  chartered  the 
Bank  of  the  United  States,  and  a  branch  having  been  es 
tablished  in  Baltimore,  the  State  of  Maryland  levied  a 
tax  upon  it,  which  the  bank  refused  to  pay.  The  State 
courts  gave  judgment  against  the  bank,  but  the  Supreme 
Court  reversed  it.  The  opinion  of  the  Chief  Justice  was 
a  masterly  exposition  of  the  liberal  construction  of  pow 
ers  granted.  He  held  that  the  United  States  possesses 


485  Pennsylvania — Address  of  Justice  Mitchell. 

authority  to  employ  all  means  appropriate  and  convenient 
as  well  as  those  absolutely  necessary  for  the  full  exercise 
of  powers  specifically  granted  to  Congress  by  the  Con 
stitution;  that  a  bank  was  a  legitimate  instrument  of  the 
financial  power;  that  the  States  cannot  burden  or  impede 
the  exercise  of  the  Federal  powers  by  interference  with 
their  instruments,  and  that  as  the  power  to  tax  implies 
the  power  to  burden  to  the  extent  of  destruction,  the 
States  cannot  tax  any  of  the  Federal  instrumentalities.  In 
the  course  of  his  opinion  the  Chief  Justice  said:  "The 
government  of  the  Union  is  a  government  of  the  people. 
In  form  and  substance  it  emanates  from  them.  Its 
powers  are  granted  by  them,  and  are  to  be  exercised  di 
rectly  on  them  and  for  their  benefit " —  the  same  thought 
which  was  put  into  lasting  popular  form  in  Lincoln's  ex 
pression,  "  Government  of  the  people,  by  the  people,  and 
for  the  people." 

Time  does  not  permit  further  details,  but  even  from 
these  illustrations  it  will  be  perceived  how  serious  the 
questions  were,  how  deeply  they  reached  into  the  very 
foundations  of  government,  and  how  materially  and  per 
manently  they  affected  all  constitutional  questions  that 
were  to  come.  It  is  true  that  Marshall  had  a  clear  field. 
He  had  no  light  from  precedents,  but  he  had  no  obstruc 
tions  from  them.  As  a  matter  of  mere  legal  construction 
he  might  have  decided  many  questions  differently,  and 
no  lawyer  then  or  since  could  have  said  with  confidence 
that  he  was  wrong.  But  he  had  one  steadfast  guide 
through  all  the  conflicting  claims  and  theories,  the  firm 
conviction  that  the  Union  under  the  Constitution  was  a 
National  government,  and  that  as  a  weak  government 
could  not  conduce  to  orderly  and  lasting  liberty,  the 
United  States,  as  a  government,  must  possess  powers  ade- 


John  Marshall  Memorial.  486 

quate  to  protect  and  preserve  itself.  In  1834  the  Legis 
lature  of  South  Carolina,  under  the  express  sanction  of 
the  Nullification  Convention  of  1832,  had  prescribed  a 
test  oath  for  its  militia  officers,  and  the  question  of  its 
constitutionality  came  before  the  Court  of  Appeals  in  the 
case  of  State  ex  rel.  McCready  v.  Hunt,  2  Hill  (S.  0.),  1. 
The  majority  of  the  court  held  the  oath  unconstitutional, 
Harper,  J.,  dissenting.  In  a  private  letter  to  one  of  the 
distinguished  counsel  in  the  case,  Thomas  S.  Grimke,  ac 
knowledging  the  receipt  of  a  copy  of  the  opinions,  the 
Chief  Justice  wrote:  "Judges  Johnson  and  O'Keall  ap 
pear  to  have  decided  the  question  on  the  Constitution  of 
the  State;  Judge  Harper  takes  into  view  the  Constitution 
of  the  United  States.  His  opinion  unquestionably  dis 
plays  talent  and  acute  reasoning  powers,  but  is  obviously 
founded  on  the  assumption  that  our  Constitution  is  essen 
tially  a  LEAGUE  and  not  a  GOVERNMENT.1 

"  This  is  the  true  and  substantial  dividing  line  between 
parties  in  the  United  States.  One  of  more  vital  impor 
tance  cannot  be  drawn.  As  the  one  opinion  or  the  other 
prevails  will  the  Union,  as  I  firmly  believe,  be  preserved 
or  dissolved.  If  a  mere  league  has  never  been  of  long 
duration,  if  it  has  never  been  of  sufficient  efficacy  to  pre 
serve  a  lasting  peace  between  its  members,  we  must  be 
irrationally  sanguine  to  indulge  a  hope  that  ours  will  fur 
nish  an  exception  to  any  and  every  thing  which  has  here 
tofore  occurred  in  the  history  of  man.  If  such  be  the  true 
spirit  of  the  instrument  such  must  be  its  construction, 
but  we  cannot,  1  think,  fail  to  ask  ourselves  for  what  pur 
pose  was  it  made?  "Was  it  worth  the  effort  of  all  the 
wisdom,  virtue  and  patriotism  of  the  country  merely  to 
exchange  one  league  for  another?  Did  the  convention  — 

1  The  capitals  are  the  Chief  Justice's. 


487  Pennsylvania— Address  of  Justice  Mitchell. 

did  the  people  —  believe  that  they  were  framing  a  league 
and  not  a  government?  " 

The  underlying  principle  on  which  the  permanence  of 
the  Union  under  the  Constitution  must  depend  came,  it 
is  true,  to  the  final  arbitrament  of  the  sword.  But  the 
conflict,  perhaps  inevitable,  came  in  the  fullness  of  time 
with  a  North  grown  superior  in  numbers  and  resources, 
and  a  great  West  as  a  controlling  factor,  and  was  fought 
out  on  that  side  by  three  generations  of  men  grown  up 
in  profound  belief  and  reverence  for  the  supremacy  of  the 
national  government  as  declared  by  Marshall.  And  when 
slavery,  the  exciting  cause  of  contention,  was  ended  in 
the  only  way  that  Marshall  thought  it  could  be,  by  a 
great  social  convulsion  or  civil  war,  the  Constitution  and 
the  Union,  as  he  expounded  them,  resumed  their  hold  on 
the  affections  of  a  united  nation. 

How  important  was  a  right  start,  and  how  much  we 
owe  to  the  firm  hand  that  carried  the  Constitution 
through  its  formative  period  of  trial  and  experiment,  we 
may  see  by  a  glance  at  the  consequences  of  a  different 
line  of  decision.  Let  me  take  a  single  illustration.  A 
hundred  years  ago  this  active,  ingenious,  energetic,  tire 
less  people  found  themselves  in  possession  of  a  vast  and 
fertile  continent  whose  original  inhabitants  were  so  few, 
so  scattered,  so  inferior,  so  heathen,  that  their  rights 
need  not  be  regarded  —  a  view,  let  us  say  with  humility, 
if  not  with  shame,  that  the  race  has  not  yet  lost  on  either 
side  of  the  ocean.  The  boundless  opportunities  that  were 
to  open  to  the  near  future  were  then  but  dimly  if  at  all 
foreseen.  The  "  west "  began  at  Pittsburg,  which  was 
remoter  from  Philadelphia  in  time,  and  infinitely  so  in 
accessibility,  than  San  Francisco  is  to-day,  and  the  "  far 
west "  ended  with  the  French  settlements  on  the  banks 


John  Marshall  Memorial.  488 

of  the  Mississippi.  Three  years  were  yet  to  elapse  be 
fore  the  heroic  expedition  of  Lewis  and  Clark  was  to  set 
out  to  explore  whither  the  great  wilderness  of  the  west 
would  lead.  Railroads  were  not  yet,  and  steamboats 
were  but  among  the  experiments  of  Philadelphia's  in 
ventors.  In  this  condition  of  things  the  State  of  New 
York  granted  to  Livingston  and  Fulton  an  exclusive 
right  of  navigation  of  the  waters  of  the  State  with  ves 
sels  moved  by  fire  or  steam,  and  a  few  years  later  this 
right  was  sustained  by  the  highest  courts  of  New  York 
by  an  injunction  against  the  owner  of  a  steamboat  ply 
ing  between  the  city  of  New  York  and  Elizabeth  town, 
with  a  license  under  the  navigation  act  of  Congress  of 
1793.  The  case  under  the  name  of  Gibbons  v.  Ogden, 
9  Wheaton,  1,  came  by  appeal  to  the  Supreme  Court,  and 
the  decision  was  reversed.  The  Chief  Justice,  in  one  of 
the  greatest  of  his  opinions,  vindicated  the  supremacy  of 
Congress  on  all  questions  of  the  regulation  of  commerce 
and  laid  down  the  canon  of  construction  by  which  the 
commerce  clause  of  the  Constitution  has  been  read  from 
that  day  to  this.  Consider  for  a  moment  the  effect  had 
the  court  taken  the  other  view  and  sustained  the  New 
York  decision.  If  every  ferry-boat  that  crossed  the 
North  River  could  do  so  only  under  license  from  New 
York  or  the  grantees  of  her  monopoly,  if  every  boat-load 
of  lumber  or  of  coal  from  the  Allegheny  and  the  Monon- 
gahela  had  had  to  run  the  blockade  of  license  and  pilot 
age  fees  and  commercial  regulations  of  every  State  be 
tween  the  line  of  Pennsylvania  and  the  Gulf  of  Mexico, 
how  long  would  the  spirit  of  our  people  have  endured 
such  shackles  to  free  movement  ?  The  wonderful  devel 
opment  of  mechanical  invention  and  the  steady  sweep 
of  material  progress  would  have  soon  burst  the  bonds  of 


489  Pennsylvania — Address  of  Justice  Mitchell. 

such  narrow  construction,  and  he  would  be  a  bold  man 
to  say  that  in  the  breaking  of  the  court's  construction 
the  authority  of  the  court  and  even  the  Constitution  it 
self,  not  yet  matured  and  settled  in  the  confidence  of 
the  nation,  might  not  have  been  destroyed  by  constant 
change  or  open  and  flagrant  violation. 

It  would  be  too  much  to  claim  that  even  the  broad 
foresight  of  Marshall  had  measured  the  force  of  the  under 
current  of  development  leading  to  the  unprecedented 
career  that  lay  before  his  country.  But  he  knew  his 
countrymen,  their  history  and  their  institutions.  He 
knew  that  the  spirit  of  the  people  was  fast  molding  a 
harmonious  and  homogeneous  nation,  which  must  be 
bound  together  by  a  national  constitution.  And  he  la 
bored  in  the  spirit  of  a  patriot,  a  statesman,  and,  above 
all,  a  far-seeing  judge,  to  make  the  bond  strong  enough 
to  endure  inevitable  strains,  yet  elastic  enough  not  to 
break  with  expanding  empire.  To  be  thus  man  of  prac 
tical  affairs  for  his  own  day,  yet  prophet  in  his  foresight 
for  the  years  to  come,  what  higher  summit  could  there 
be  in  the  achievements  of  human  judgment,  patriotism 
and  wisdom  ? 

In  the  four  and  thirty  years  that  he  sat  in  judgment 
the  court  made  fifty-one  decisions  on  constitutional  ques 
tions,  and  the  Chief  Justice  wrote  thirty-four  of  them. 
In  only  one  did  the  majority  of  the  court  fail  to  agree 
with  him.  In  Ogden  v.  Saunders,  12  Wheaton,  213,  the 
construction  of  the  bankruptcy  clause  in  the  Constitution 
arose  with  respect  to  the  exclusion  of  State  legislation  on 
the  subject.  Three  judges,  including  Marshall,  thought 
the  power  of  Congress  exclusive,  but  the  majority  held 
that  the  States  might  legislate  on  the  subject  except  where 
the  power  is  actually  exercised  by  Congress  and  the  State 


John  Marshall  Memorial.  490 

laws  conflict  with  the  law  of  Congress.  In  the  three- 
quarters  of  a  century  that  have  elapsed  since  then  we 
have  had  bankruptcy  acts  passed  and  repealed  by  Con 
gress,  insolvency  laws  of  every  variety  of  scope  and  effect 
passed  and  repealed  and  passed  again  by  State  legisla 
tures,  and  the  subject  cannot  be  said  to  be  settled  yet. 
In  the  light  of  all  this  additional  experience  the  best  law 
yers  of  to-day  are  far  from  sure  that  the  opinion  of  the 
Chief  Justice  was  not  the  wisest  and  most  correct. 

In  speaking  of  Marshall  we  do  not  forget  that  he  had 
learned  and  able  colleagues,  and  was  aided  by  an  excep 
tionally  brilliant  and  able  bar.  But  he  was  easily  the 
master  of  them  all,  and  by  the  pure  force  of  reason,  espe 
cially  on  constitutional  questions,  he  dominated  the  court 
with  the  free  consent  and  admission  of  his  brethren.  In 
1811  President  Madison  appointed  Joseph  Story  to  the 
Supreme  Court  for  the  undisguised  purpose  of  neutraliz 
ing  the  influence  of  Marshall.  Story  was  young,  aggres 
sive,  and,  as  Josiah  Quincy  says,  "a  bitter  Democrat  in 
those  days."  But  he  came  under  the  influence  of  Mar 
shall,  and,  like  the  others,  he  soon  yielded  to  the  weight 
of  superior  intellect  and  force  of  character.  He  became 
an  affectionate  and  admiring  disciple,  and  the  friendship 
lasted  throughout  his  life  —  a  friendship  highly  honor 
able  to  both  men;  to  Story  that  he  had  the  breadth  and 
largeness  of  mind  to  become  and  confess  himself  a  con 
vert;  to  Marshall  that  he  could  make  of  such  an  antago 
nist  an  admiring  follower. 

More  than  half  a  century  ago  Henry  Brougham  said 
that  no  judge  could  afford  to  be  often  wrong,  and  the 
time  had  gone  by  when  any  court  could  rest  long  on  mere 
authority.  It  must  justify  itself  by  its  reasons.  No  tri 
bunal  was  ever  more  dependent  on  this  principle  than  the 


491  Pennsylvania — Address  of  Justice  Mitchell 

Supreme  Court  of  the  United  States,  and  no  judge  ever 
sustained  the  burden  with  more  unfailing  strength  than 
Chief  Justice  Marshall.  He  brought  to  the  judicial  office, 
as  we  have  seen,  a  profound  knowledge  of  the  history 
and  institutions  of  his  country,  a  political  sagacity  trained 
by  long  and  varied  experience  in  the  legislative  and  ad 
ministrative  departments  of  the  government,  a  firm  and 
comprehensive  grasp  of  the  fundamental  principles  of 
law,  and,  above  all,  an  unswerving  fidelity  to  the  highest 
conceptions  of  judicial  duty.  Through  all  the  intricacies 
of  conflicting  evidence  or  discordant  principles  his  in 
tuitive  perceptions  saw  the  connection  between  premises 
an 5  conclusion,  and  with  an  unrivaled  grasp  of  every 
phase  and  bearing  of  the  subject  his  vigorous  and  unerr 
ing  logic  marked  out  the  path  with  such  cogent  and  con 
vincing  reasons  as  to  meet  the  criticism  of  opposing  views, 
and  still  more  to  stand  the  test  of  the  future  in  the  de 
velopment  of  corollaries  and  consequences.  His  intel 
lectual  integrity  and  courage  took  him  straight  to  his 
conclusion,  turning  his  eye  neither  to  the  right  nor  left 
for  irrelevant  objects  by  the  way. 

It  is  related  of  the  great  literary  autocrat  of  the  eight 
eenth  century  that  he  said  of  a  future  Lord  Chancellor: 
"I  like  Ned  Thurlow;  he  lays  his  mind  fairly  against 
yours  and  never  flinches."  If  Dr.  Johnson  had  known 
John  Marshall,  he  would  have  liked  him  for  the  same 
reason.  He  never  flinched.  He  never  underestimated 
or  understated  the  strength  of  his  opponent's  position, 
or  the  difficulties  of  his  own.  He  laid  his  reason  bare  for 
all  men  to  see  and  to  challenge,  and  those  who  would  not 
be  convinced  against  their  will  were  at  least  silenced  by 
their  inability  to  refute  him.  Even  the  caustic  and  un 
friendly  John  Eandolph  said:  "I  know  John  Marshall's 


John  Marshall  Memorial.  492 

opinion  is  wrong,  but  there  is  no  man  in  the  country  who 
can  take  it  up  and  show  how  it  is  wrong." 

In  this  country  the  prominence  and  importance  of 
Marshall's  opinions  on  constitutional  questions,  have  ab 
sorbed  our  attention.  But  abroad,  outside  of  special 
students  of  American  institutions,  such  as  Bryce  and  Sir 
Henry  Maine,  his  reputation  rests  largely  on  his  judg 
ments  in  admiralty  and  international  law.  In.  these  he 
ranks  with  Lord  Stowell.  The  breadth  of  his  views  was 
prophetic.  He  held  that  the  English  doctrine  limiting 
the  admiralty  jurisdiction  to  tide  waters  could  not  prop 
erly  be  applied  to  our  great  rivers,  but  that  the  test 
should  be  navigability  from  the  sea.  And  he  was  among 
the  earliest  to  recognize  that  our  great  lakes  were  inland 
seas  and  the  law  should  so  treat  them. 
x  /  The  opinions  of  Marshall  are  models  of  judicial  style. 
No  legal  writings  were  ever  freer  from  technicalities  of 
language  or  thought.  In  plain  words  which  reach  even, 
the  unlearned  understanding,  without  ornament,  and  ab 
solutely  devoid  of  flourish  or  by-play  or  looking  to  side 
effects  of  any  kind,  they  present  a  calm  and  steady  flow  of 
pure  and  sustained  reason  from  postulate  to  conclusion. 
And  they  read  to  the  lawyers  of  to-day  as  they  read  to 
the  lawyers  in  the  cases  they  decided,  for  the  argument 
has  no  trace  of  personal,  or  party,  or  temporary  consid 
erations.  Though  his  individual  convictions  were  deep 
and  strenuous  and  the  contests  of  his  time  were  fierce 
and  unsparing,  his  personality  no  more  appears  than  the 
personality  of  Shakespeare  in  Hamlet  or  Macbeth.  He 
wrote  as  Shakespeare  wrote,  not  in  the  taste  or  fashion 
of  his  age,  but  on  the  foundations  of  human  wisdom  in 
the  light  of  pure  and  enduring  reason.  And  he  wrote  as 
Thucydides  wrote,  not  for  a  day,  but  as  a  possession  for 
all  time. 


493  Pennsylvania — Address  of  Justice  Mitchell. 

From  Marshall's  assumption  of  the  Chief  Justiceship 
his  life  is  necessarily  identified  with  his  judicial  career. 
But  at  least  a  passing  mention  must  be  made  of  two  or 
three  incidental  matters. 

On  the  death  of  Washington  his  papers  passed  into  the 
possession  of  his  favorite  nephew,  Judge  Bushrod  Wash 
ington,  at  whose  urgent  solicitation  Marshall  undertook 
the  writing  of  his  life.  It  was  a  great  labor,  performed 
in  the  midst  of  exacting  judicial  duties.  It  is  in  reality 
a  history,  and  indeed  the  first  volume  was  revised  and 
issued  separately  as  a  school  history  of  the  United  States. 
It  was,  however,  laid  out  on  too  large  a  plan  as  a  biogra 
phy,  and  the  result  is  somewhat  cumbersome.  But  it  is 
a  storehouse  of  information,  clear  and  authoritative  nar 
ration,  and  sound  judgment  on  men  and  affairs  at  the 
birth  and  early  days  of  the  republic. 

In  1807  occurred  the  first  and  in  many  respects  the 
greatest  of  what  may  be  called  our  State  trials,  that  of 
Aaron  Burr,  for  treason,  before  the  Chief  Justice  atKich- 
mond.  The  circumstances  are  familiar  and  I  need  not 
recount  them.  But  I  make  this  passing  mention  of  the 
trial  as  it  shows  by  a  shining  example  the  impartiality 
and  fearlessness  of  Marshall.  Burr  was  detested  by  the 
Federalists  as  a  leading  and  violent  Eepublican,  and  there 
was  added  to  this  political  antagonism  a  personal  ani 
mosity  against  him  as  the  slayer  of  the  beloved  Hamilton. 
On  the  other  hand  his  treacherous  effort  to  supplant 
Jefferson  in  the  choice  for  the  Presidency,  when  the  acci 
dent  of  the  vote  in  the  electoral  college  under  the  first 
system  provided  in  the  Constitution  gave  him  an  appar 
ent  but  wholly  unintended  opportunity,  had  drawn  upon 
him  the  vindictive  wrath  of  his  own  party.  Jefferson 
was  President,  and  the  whole  energies  and  influence  of 


John  Marshall  Memorial.  494 

the  administration  were  exerted  for  the  prosecution. 
Never  certainly  in  America  was  a  prisoner  brought  to 
the  bar  of  a  State  trial  under  a  fiercer  hue  and  cry,  pop 
ular  and  official,  for  conviction,  and  before  a  judge  per 
sonally  and  politically  hostile.  And  never  were  the  scales 
of  justice  held  with  steadier  and  more  impartial  hand. 
The  Chief  Justice  took  his  stand  on  the  clear  text  of  the 
Constitution  that  treason  against  the  United  States  shall 
consist  only  in  levying  war  against  them,  and  no  person 
shall  be  convicted  unless  on  the  testimony  of  two  wit 
nesses  to  the  same  overt  act,  and  he  held  this  position 
resolutely  against  all  the  arguments  and  almost  threats 
of  the  prosecution,  backed  by  the  whole  administration. 
The  result  was  an  acquittal,  and  it  was  bitterly  said  that 
"Marshall  has  stepped  in  between  Burr  and  death."  A 
storm  of  angry  disapproval  burst  forth  from  both  parties, 
but  the  Chief  Justice  went  calmly  on,  swerving  neither 
to  right  nor  left,  confident  in  his  own  rectitude  and  the 
approval  of  his  conscience.  He  outlived  the  censure  even 
of  his  opponents,  and  his  countrymen  to-day  may  proudly 
challenge  the  annals  of  jurisprudence  to  show  a  more 
signal  exhibition  of  judicial  impartiality  and  courage. 

The  last  public  service  that  the  Chief  Justice  rendered 
to  his  native  State  was  his  attendance  at  the  Convention 
of  1829  to  revise  the  Constitution.  It  was  a  very  not 
able  assemblage,  which  included  in  its  membership  the 
venerable  ex-Presidents,  Madison  and  Monroe,  Chief  Jus 
tice  Marshall,  "William  B.  Giles,  the  Governor  of  the  State, 
John  Randolph  of  Roanoke,  Philip  P.  Barbour,  Benjamin 
"Watkins  Leigh,  Littleton  "\V.  Tazewell,  and  others  hardly 
less  distinguished.  Even  among  these  the  Chief  Justice 
was  a  conspicuous  figure,  and  his  views  commanded  great 
attention.  I  must  content  myself  with  a  reference  to 


495  Pennsylvania  —  Address  of  Justice  Mitchell. 

only  one,  his  successful  effort  in  behalf  of  the  independ 
ence  of  the  judiciary.  "The  judicial  department,"  he 
said,  "  comes  home  in  its  effects  to  every  man's  fireside;  it 
passes  on  his  property,  his  reputation,  his  life,  his  all.  Is 
it  not  to  the  last  degree  important  that  he  should  be  ren 
dered  perfectly  and  completely  independent,  with  nothing 
to  influence  or  control  him  but  God  and  his  conscience? 
.  .  .  I  have  always  thought  from  my  earliest  youth 
until  now  that  the  greatest  scourge  an  angry  Heaven  ever 
inflicted  upon  an  ungrateful  and  sinning  people  was  an 
ignorant,  a  corrupt  or  a  dependent  judiciary." 

Though  we  are  met  to-day  to  commemorate  especially 
his  judicial  career,  yet  we  should  fail  to  do  full  justice  to 
the  occasion  did  we  not  turn  our  attention  for  a  brief  time 
to  his  personal  qualities.  For  the  man  was  as  nearly  per 
fect  as  the  magistrate.  His  cheerful  fortitude  in  youth 
under  the  hardships  of  Valley  Forge  I  have  already  men 
tioned,  and  it  never  forsook  him.  His  feelings  were  warm 
and  his  opinions  firm,  but  a  heart  of  universal  kindness 
governed  his  actions  and  his  manners.  I  have  searched 
every  memoir  and  reminiscence  and  anecdote,  and  found 
no  single  instance  recorded  of  an  exhibition  of  temper, 
unless  it  may  be  implied  in  the  terms  of  Horace  Binney's 
comment  on  his  patience,  "  when  he  ceased  to  hear  it  was 
not  because  his  patience  was  exhausted,  but  because  it  had 
ceased  to  be  a  virtue."  But  that  he  had  a  temper  there 
can  be  no  doubt.  He  could  not  have  been  the  judge  he 
was,  without  it.  No  judge  can  afford  to  be  without  a 
firm  temper,  just  as  no  judge  can  afford  to  let  his  temper 
break  out  of  control.  The  fact  that  it  is  known  to  be 
there  if  it  is  called  for,  suffices  for  all  but  the  most  extraor 
dinary  occasions.  And  no  man  that  has  knowledge  of 


John  Marshall  Memorial.  496 

the  unparalleled  rancor  of  the  political  and  personal  pas- 
sions  of  that  time  can'  read  the  trial  of  Aaron  Burr  with 
out  feeling  that  the  calm  and  impartial  serenity  with 
which  the  Chief  Justice  held  in  check  the  violence  of  both 
prosecution  and  defense  had  behind  it  a  firmness  of  tem 
per  which  even  the  representative  of  the  government 
could  not  venture  to  encounter. 

His  domestic  affections  were  warm  and  enduring.  At 
an  early  age  he  married  a  charming  girl,  for  she  was  but 
little  past  fifteen,  and  they  lived  together  in  unchanging 
affection  for  nearly  fifty  years.  Her  loss  he  never  ceased 
to  regret,  and  during  the  three  years  between  her  death 
and  his  own,  it  is  said  he  never  omitted  to  visit  her  grave 
at  least  once  a  week. 

His  most  striking  quality  in  private  life  was  the  unaf 
fected  simplicity  of  his  character  and  manners,  the  lack 
of  all  vanity  or  affectation,  or  assumption  of  superiority. 

In  some  reminiscences  of  him  furnished  to  the  Louisiana 
Law  Journal,  by  a  contemporary,  Mr.  Gustavus  Schmidt, 
afterwards  a  distinguished  member  of  the  New  Orleans 
Bar,  I  find  the  following  just'  and  graphic  description : 

"In  ordinary  life  the  conduct  of  Mr.  Marshall  was 
affable  and  polite,  and  when  entering  the  court-room, 
which  was  usually  before  the  appointed  hour,  for  he  was 
extremely  punctual  in  the  discharge  of  his  duties,  his  con 
versation  was  cheerful,  and  evinced  a  remarkable  freedom 
of  mind,  which  in  men  of  eminent  attainments  in  any 
particular  science  is  almost  an  invariable  criterion  of 
superiority  of  intellect. 

"In  his  colloquies  on  such  occasions  with  the  members 
of  the  bar,  which  were  frequent,  no  attempt  was  ever 
made  to  claim  superiority,  either  on  account  of  his  age  or 
his  great  acquirements;  neither  was  there  any  effort  to 


497  Pennsylvania — Address  of  Justice  Mitchell. 

acquire  popularity;  but  his  conduct  was  evidently  dic 
tated  by  a  benevolent  interest  in  the  ordinary  affairs  of 
life,  and  a  relish  for  social  intercourse.  The  moment, 
however,  he  took  his  seat  on  the  bench,  his  character  as 
sumed  a  striking  change.  He  still  continued  the  same 
kind  and  benevolent  being  as  before;  but  instead  of  the 
gay  and  cheerful  expression  which  distinguished  the  fea 
tures  while  engaged  in  social  conversation,  his  brow  as 
sumed  a  thoughtfulness  and  an  air  of  gravity  and  reflec 
tion  which  invested  his  whole  appearance  with  a  certain 
indefinable  dignity,  which  bore,  however,  not  the  slight 
est  resemblance  to  sternness.  The  impression  made  on 
the  beholder  was  that  of  a  man  engaged  in  some  highly 
important  and  grave  deliberation,  which  he  apparently 
pursued  with  pleasure,  but  which  at  the  same  time  seemed 
to  absorb  his  whole  attention  and  require  the  full  exer 
cise  of  his  faculties." 

That  he  had  a  just  confidence  in  his  own  powers  is 
manifest  in  the  direct  and  straightforward,  way  in  which 
he  grappled  with  the  most  difficult  problems  that  came 
before  him.  But  it  was  a  confidence  free  from  all  vanity 
and  conceit.  The  Hon.  Charles  Augustus  Murray,  grand 
son  of  Lord  Dunmore,  the  last  Koyal  Governor  of  Vir 
ginia,  wrote  of  his  travels  in  America,  and,  speaking 
admiringly  of  Chief  Justice  Marshall,  said  that  the  only 
indication  of  vanity  he  showed  was  the  hospitable  one  of 
being  able  to  give  his  guests  the  best  glass  of  Madeira  in 
Virginia.  His  great-granddaughter  has  told  us  that  he 
brought  the  wine  from  France  in  1798,  and  it  was  care 
fully  preserved  in  the  family  for  use  at  weddings  and- 
special  occasions.  And  it  adds  a  touch  of  pathos  to  the 
memory  of  the  kindly  and  hospitable  patriot,  that  thirty 
years  after  his  death  some  of  his  wine  was  sold  to  re- 
—  32 


John  Marshall  Memorial.  498 

pair  the  fortunes  of  his  descendants  who  had  suffered  by 
the  unsparing  hardships  of  civil  war.  "  And  so,"  writes 
his  great-granddaughter,  "it  came  by  the  fortunes  of 
war  that  I  drank  my  great-grandfather's  wine  in  a 
stranger's  house." 

In  this  connection  there  is  another  anecdote  of  pleasant 
interest.  The  Hon.  Josiah  Quincy,  when  a  young  man, 
accompanied  Judge  Story  to  Washington,  and  in  his 
"  Figures  of  the  Past  "  relates  that  the  judges  of  the  Su 
preme  Court  usually  dined  together,  and  their  custom 
was  to  allow  themselves  wine  only  when  it  was  raining. 
But  "  the  Chief,"  said  Story,  "  was  brought  up  on  Fed 
eralism  and  Madeira,"  and  occasionally  even  on  a  sun 
shiny  day  would  say,  "  Brother  Story,  will  you  step  to 
the  window  and  see  if  there  are  signs  of  rain  ?  "  Story 
would  be  obliged  reluctantly  to  report  that  he  saw  none, 
whereupon  the  Chief  Justice  would  say  cheerfully,  with 
a  gleam  of  humor  in  his  piercing  eyes,  "  Well,  this  is  a 
very  large  territory  over  which  we  have  jurisdiction  and 
I  feel  sure  it  is  raining  in  some  part  of  it.  I  think  we 
may  have  a  bottle  to-day." 

In  person  he  was  plain,  and,  it  is  said,  without  advan 
tages  of  appearance,  voice,  attitude  or  manner.  He  was 
very  tall  and  thin,  and  careless  though  not  untidy  in  his 
dress.  Josiah  Quincy  says  that  he  was  plain  and  almost 
rustic  in  appearance,  and  might  easily  be  taken  for  "an 
ordinary  political  judge  "  until  you  encountered  his  bril 
liant  eyes.  In  his  youth  he  was  active  and  athletic,  and 
he  remained  in  vigorous  good  health  almost  until  the 
last.  Mr.  Binney  relates  that  in  1775,  as  a  youth  of  nine 
teen,  Marshall  walked  ten  miles  to  the  militia  muster, 
and  back  again  in  the  evening,  having  in  the  meantime 
drilled  his  company  and  afterwards  addressed  them  on 


499  Pennsylvania— Address  of  Justice  Mitchell 

the  issues  of  the  impending  revolution.  In  1832,  when 
seventy-seven  years  of  age,  he  wrote  his  son  that  he 
walked  daily  two  miles  to  the  court  and  back  again  to 
dinner.  He  never  failed,  when  at  home,  to  attend  the 
meetings  of  the  Richmond  quoit  club,  of  which  he  was 
an  honored  and  always  welcome  member,  and  it  is  re 
lated  that  when  an  old  man  he  could  still  throw  a  three- 
pound  quoit  to  a  fifty-foot  hub  with  almost  unerring  ac 
curacy.  I  do  not  know  how  much  my  younger  hearers, 
particularly  those  of  city  birth,  in  these  days  of  tennis 
and  golf  may  know  of  that  time-honored  and  classic 
game,  but  even  down  to  my  day  it  was  almost  the  only 
out-door  game  in  which  grown  men  indulged.  I  have 
played  more  than  once  with  the  late  Chief  Justice  Shars- 
wood,  and  have  seen  him  triumph  in  a  successful "  ringer  " 
with  the  zest  of  a  boy. 

There  are  many  portraits  of  the  Chief  Justice,  but  most 
of  them  by  inferior  artists  who  failed  wholly  to  catch  or 
portray  the  spirit  and  character  of  the  man.  The  pro 
file  by  St.  Memin,  being  taken  with  the  physionotrace,  is 
of  course  mechanically  accurate,  and  St.  Memin  being  an 
artist  of  ability  has  given  us  an  interesting  and  valuable 
likeness  by  which  to  test  the  others.  But  being  in  pro 
file  we  miss  the  alert  and  beaming  eye  which  was  the 
noticeable  feature  of  the  face.  The  standard  and  only 
satisfactory  likeness  is  the  one  painted  by  Henry  Inman 
for  the  Philadelphia  Bar,  which  now  hangs  in  the  library 
of  the  Law  Association  of  this  city.  It  gives  us  the 
mature  man,  with  all  the  qualities  that  his  contempora 
ries  ascribe  to  him  —  the  thin,  rather  small  face,  the  broad 
brow  with  a  mass  of  dark  hair  growing  low  down  on  it, 
the  benignant  half  smile,  and  the  keen  but  kindly  black 


John  Marshall  Memorial.  500 

eyes  that  William  Wirt  said  "  possess  an  irradiating  spirit 
which  proclaims  the  imperial  powers  of  the  mind  with 
in."  The  full-length  portrait  by  Chester  Harding  now  in 
the  Boston  Athenaeum  gives  a  good  representation  of  the 
tall,  thin  figure  and  the  general  outlines  of  the  face,  but 
the  eyes  wholly  fail  to  indicate  the  "  irradiating  spirit." 
In  this  respect  the  portrait  is  little  better  than  the  many 
silhouettes  that  show,  both  sitting  and  standing,  the  long, 
thin  limbs,  the  round  head  and  small  features  which 
made  up  his  general  appearance.  The  eye  was  the  elec 
tric  lamp  that  lighted  up  the  whole  countenance,  and 
without  it  the  features  failed  to  reveal  the  vital  spirit  of 
the  man.1 

Philadelphia  has  special  claims  upon  this  celebration, 
for  outside  of  his  own  home  at  Richmond,  nowhere  was 
he  so  known  and  beloved  in  his  life-time,  or  more  honored 
since,  than  here. 

It  was  in  Philadelphia  in  1796  that  he  argued  the  great 
case  of  Ware  v.  Hylton,  which  first  established  his  na 
tional  fame  as  a  lawyer;  here,  in  1798,  on  his  return  from 
the  mission  to  France,  he  was  received  as  in  a  triumphal 
march  by  the  military  and  the  citizens  who  went  out  to 
Frankford  to  meet  him,  and  by  Congress,  who  gave  a 

1  Since  this  address  was  delivered  I  have  had  the  opportunity  of 
seeing  in  the  Green  Bag  for  February  a  reproduction  of  a  portrait 
by  John  Wesley  Jarvis  which  is  interesting  as  presenting  Marshall 
at  an  earlier  age  than  most  of  the  others.  It  has  the  features  and 
shows  the  darkness  of  the  hair  and  eyes  with  the  prominence  that 
his  contemporaries  uniformly  ascribe  to  his  appearance.  But  the 
attitude  is  stiff  and  conventional  and  the  expression  dull  and  com 
monplace.  The  countenance  has  neither  the  weight  of  character 
and  benevolent  dignity  of  the  Inman  portrait,  nor  even  the  lighter 
and  more  social  expression  of  that  by  Harding. 


501  Pennsylvania — Address  of  Justice  Mitchell. 

dinner  to  him  at  which,  as  I  have  already  related,  Pinck- 
ney's  famous  answer  to  Talleyrand  was  put  into  its  sen 
tentious  popular  form ;  here,  in  1799,  he  took  his  seat  in 
Congress  as  a  member  from  Virginia,  and,  in  announc 
ing  the  death  of  Washington,  crystallized  his  description 
into  one  immortal  phrase;  here,  from  time  to  time  in  his 
judicial  labors,  he  so  established  himself  in  the  affection 
ate  respect  of  the  bar  that  they,  in  happy  testimonial, 
had  his  portrait  painted  by  Henry  Inman;  here,  from 
the  press  of  a  Philadelphia  publisher,  he  sent  forth  that 
store-house  of  accurate  and  impartial  history,  the  Life 
of  Washington ;  here,  to  the  pre-eminent  skill  of  Phila 
delphia's  physicians,  he  came  in  his  old  age  for  that  re 
lief  from  suffering  which  was  so  fortunately  attained ; 
and  here,  at  the  last,  he  came  again  when  unhappily  re 
lief  was  beyond  human  skill,  and  on  July  6,  1835,  ended 
his  long  and  honored  life. 

On  the  day  following  his  death  a  meeting  of  the  citi 
zens  was  held,  at  which  the  venerable  Bishop  White, 
then  in  his  eighty-eighth  year,  presided,  and  a  meeting  of 
the  Bar  appointed  a  committee,  composed  of  some  of  its 
most  eminent  members,  Judge  Baldwin,  John  Sergeant, 
Eichard  Peters,  Jr.,  William  Kawle  the  younger,  and 
Edward  D.  Ingraham,  who  accompanied  the  remains  to 
their  final  resting  place  at  Kichmond. 

The  mayor  and  city  officials  escorted  the  body  as  far 
as'New  Castle,  and  as  if  to  give  the  last  connection  with 
Philadelphia  a  final  touch  of  pathetic  sentiment,  the 
venerated  bell  that  had  proclaimed  liberty  throughout 
the  land  unto  all  the  inhabitants  thereof  tolled  its  last 
peal  at  his  funeral. 

On  the  invitation  of  the  city  councils,  Horace  Binney, 
a  few  months  later,  delivered  that  admirable  eulogium  to 


John  Marshall  Memorial.  502 

which  nothing  since  written  has  made  any  substantial  ad 
dition.  No  tribute  of  affection  and  veneration  was  want 
ing  that  Philadelphia  could  pay,  and  that  it  might  not 
be  merely  transitory  the  Bar  subscribed  a  fund  for  a 
memorial  which,  after  years  of  careful  nursing  and  in 
vestment,  resulted  in  the  noble  statue  by  Story,  the  law 
yer-artist  son  of  Marshall's  admiring  colleague,  erected 
at  the  National  Capital  in  our  own  day,  with  a  memo 
rable  oration  from  one  of  our  own  Bar,  the  late  William 
Henry  Kawle. 

By  the  uniform  concurrence  alike  of  contemporaries 
and  posterity,  we  unhesitatingly  claim  for  Marshall  the 
foremost  place  in  the  list  of  eminent  judges.  Pinkney 
said,  "  He  was  born  to  be  the  Chief  Justice  of  any  coun 
try  into  which  Providence  should  have  cast  him."  The 
Bar  of  Charleston,  never  converts  to  his  view  of  the  Con 
stitution,  yet  paid  this  tribute  to  the  man  in  a  resolution 
passed  on  hearing  of  his  death:  "Though  his  authority 
as  Chief  Justice  of  the  United  States  was  protracted  far 
beyond  the  ordinary  term  of  public  life,  no  man  dared 
to  covet  his  place,  or  express  a  wish  to  see  it  filled  by  an 
other.  Even  the  spirit  of  party  respected  the  unsullied 
purity  of  the  judge,  and  the  fame  of  the  Chief  Justice 
has  justified  the  wisdom  of  the  Constitution,  and  recon 
ciled  the  jealousy  of  freedom  to  the  independence  of  the 
judiciary."  This  tribute,  specially  eloquent  from  its 
source,  is  believed  to  have  been  drawn  by  the  pen  of  the 
learned  and  patriotic  Petigru,  the  bold  and  eminent 
figure  who  in  his  venerable  age  attested  his  fidelity  to 
the  principles  of  Marshall  through  all  the  terrible  years 
of  civil  war  by  standing  out  alone  and  unyielding  against 
the  heresy  of  secession. 


503  Pennsylvania  —  Address  of  Justice  Mitchell. 

And  more  recently  the  keenest  and  best  informed  of 
transatlantic  critics  of  American  institutions  has  justly 
written: 

"  Another  fact  which  makes  the  function  of  an  Ameri 
can  judge  so  momentous  is  the  brevity,  the  laudable 
brevity,  of  the  Constitution.  The  words  of  that  instru 
ment  are  general,  laying  down  a  few  large  principles. 
The  cases  which  will  arise  as  to  the  construction  of  these 
general  words  cannot  be  foreseen  till  they  arise.  When 
they  do  arise  the  generality  of  the  words  leaves  open  to 
the  interpreting  judges  a  far  wider  field  than  is  afforded 
by  ordinary  statutes,  which,  since  they  treat  of  one  par 
ticular  subject,  contain  enactments  comparatively  minute 
and  precise.  Hence,  although  the  duty  of  a  court  is  only 
to  interpret,  the  considerations  affecting  interpretation 
are  more  numerous  than  in  the  case  of  ordinary  statutes, 
more  delicate,  larger  in  their  reach  and  scope.  They 
sometimes  need  the  exercise  not  merely  of  legal  acumen 
and  judicial  fairness,  but  of  a  comprehension  of  the  nature 
and  methods  of  government  which  one  does  not  demand 
from  the  European  judge  who  walks  in  the  narrow  path 
traced  for  him  by  ordinary  statutes.  It  is  therefore  hardly 
an  exaggeration  to  say  that  the  American  Constitution  as 
it  now  stands,  with  the  mass  of  fringing  decisions  which 
explain  it,  is  a  far  more  complete  and  finished  instrument 
than  it  was  when  it  came  fire-new  from  the  hands  of  the 
convention.  It  is  not  merely  their  work,  but  the  work  of 
the  judges,  and  most  of  all  of  one  man,  the  great  Chief 
Justice  Marshall."  (Bryce's  Am.  Commonwealth.) 

If  we  challenge  the  array  of  names  in  that  country 
whose  system  has  produced  the  historic  exemplars  of  ju 
dicial  greatn  ess,  where  shall  we  find  quite  his  equal  ?  Not 
in  Coke,  prodigy  of  learning  and  relentless  logic  and 


John  Marshall  Memorial.  504 

courageous  asserter  of  judicial  independence  as  he  was, 
for  he  was  narrow  and  technical  in  his  law,  illiberal  and 
even  vindictive  in  his  personality.  Let  me  not  be  mis 
understood.  I  speak  as  a  devoted  and  reverent  disciple 
of  the  common  law  and  of  Coke  as  a  master  in  it.  But  it 
is  given  to  few  men  to  be  larger  minded  than  their  age, 
and  it  is  no  disparagement  to  Coke  to  say  that  he  was 
not  one  of  the  few.  Nor  shall  we  find  him  in  Ellesmere 
or  Nottingham  or  Hardwicke,  fathers  of  equity  as  they 
were,  nor  even  in  Mansfield,  the  first  great  master  of 
technicalities,  who  yet  saw  through  them  all  that  the  true 
vitality  of  the  common  law  was  its  adaptability  to  the 
changing  affairs  of  men.  Great  as  these  were,  and  they 
are  the  honored  of  the  legal  profession  wherever  their 
language  is  known,  yet  viewing  the  magnitude,  breadth, 
variety  and  importance  of  his  labors,  or  the  ability  with 
which  he  performed  them,  Marshall  has  had  no  equal, 
hardly  a  second. 

The  world's  great  man  who  helps  to  mold  its  history  is 
he  who,  with  great  abilities,  has  great  opportunities,  and 
by  his  use  of  them  produces  great  results.  Tried  by  this 
exacting  standard,  in  the  light  of  his  work  as  time  has 
proved  it,  Marshall  is  the  foremost  in  all  the  long  line  of 
judicial  eminence. 

A  century  and  a  decade  have  passed  since  the  Consti 
tution  of  the  United  States  was  adopted.  Dynasties  have 
risen  and  fallen ;  boundaries  have  expanded  and  shrunken 
till  continents  seemed  almost  the  playthings  of  ambition 
and  war;  nationalities  have  been  asserted  and  subdued; 
governments  built  up  only  to  be  overthrown,  and  the 
kingdoms  of  the  earth  from  the  Pillars  of  Hercules  to 
the  Yellow  Sea  have  been  shaken  to  their  foundations. 
Through  all  this  change  and  destruction,  the  Republic, 


505  Pennsylvania  —  Address  of  Justice  Mitchell. 

shortest  lived  of  all  forms  of  government  in  the  prior 
history  of  the  world,  surviving  the  perils  of  foreign  and 
domestic  war,  has  endured  and  flourished.  The  band  of 
union  framed  to  hold  together  thirteen  small  communi 
ties  fringing  the  Atlantic  coast  has  expanded  to  unite 
forty-five  States  into  a  mighty  nation  of  more  than  twenty 
times  the  population,  spread  from  ocean  to  ocean  over  the 
breadth  of  the  continent.  That  it  has  done  this  and  is 
still  adequate  is  due  more  than  to  any  other  one  man  to 
the  great  Chief  Justice  who  defined  its  terms  in  such  broad 
and  wise  and  far-seeing  and  enduring  form. 

Fortes  ante  Agamemnona,  said  the  Roman  poet.  There 
were  great  men  before  Agamemnon,  there  were  just  men 
before  Aristides.  But  even  as  the  Greeks  cherished  the 
name  of  Aristides  the  Just,  and  sent  it  down  to  the  ad 
miring  centuries,  so  shall  Americans  cherish  and  send 
down  to  all  time  the  name  of  John  Marshall  as  the  great 
est  of  jurists.  More  fortunate  than  Aristides,  no  envious 
countryman  was  tired  of  hearing  his  praise  while  he  lived, 
he  shall  be  more  fortunate  in  his  fame  as  not  only  the 
just  man,  but  the  just  judge. 

The  celebration  in  Philadelphia  was  honored  by  the 
presence  of  a  number  of  lineal  descendants  of  Chief  Jus 
tice  Marshall,  those  accepting  the  invitation  being  Mrs. 
J.  Harry  Chesley,  Miss  Madge  Marshall  Chesley,  Miss 
Claudia  Dare  Chesley,  Miss  Bessie  Hall  Chesley,  Miss 
Etta  Harry  Chesley,  of  Claymont,  Delaware;  Mrs.  Rob 
ert  Wright  Forsyth,  Miss  Charlotte  Elizabeth  Forsyth, 
Master  Robert  Wright  Forsyth,  Jr.,  Master  Thomas  Mar 
shall  Forsyth,  Master  Augustine  Warner  Lewis  Forsyth, 
of  Philadelphia. 

Mrs.  Chesley  and  Mrs.  Forsyth  are  granddaughters  of 


John  Marshall  Memorial.  506 

Thomas  Marshall,  the  eldest  son  of  Chief  Justice  Mar 
shall,  and  the  Misses  Chesley,  Miss  Forsyth  and  Masters 
Forsyth  are  the  great-grandchildren  of  Thomas  Marshall 
and  the  great-great-grandchildren  of  the  Chief  Justice. 

An  interesting  feature  of  the  John  Marshall  celebra 
tion  was  the  exhibition  in  charge  of  the  Legal  Biography 
Committee  of  the  Pennsylvania  Bar  Association,  at  its 
gallery  and  museum  in  the  University  of  Pennsylvania 
Law  Building.  This  consisted  of  a  collection  of  valuable 
portraits  of  the  great  Chief  Justice  and  his  associates  on 
the  Bench;  loan  exhibitions  of  the  Law  Association  of 
Philadelphia,  of  Hampton  L.  Carson,  Charles  Roberts 
and  Alfred  Percival  Smith,  Esqs.,  and  the  exhibit  of  the 
venerable  Law  Academy  of  Philadelphia. 

Of  all  the  organizations  which  united  to  honor  the 
memory  of  Marshall,  the  Law  Academy  was  the  only 
one  which  existed  as  an  active  living  body  at  the  time 
Marshall  received  his  appointment.  The  distinguished 
founder  and  patron  of  the  Academy,  Peter  S.  Dupon- 
ceau,  presided  at  the  meeting  of  the  Philadelphia  Bar  on 
the  death  of  Marshall.  Among  the  manuscripts  was  an 
autograph  letter  of  his,  accepting  a  re-election  as  Provost 
of  the  Academy;  a  minute-book  referring  to  the  consti 
tution  and  by-laws  adopted  in  1783 ;  the  original  copy  of 
those  adopted  in  1806;  printed  copies  of  the  numerous 
addresses  prepared  especially  for  the  Law  Academy  from 
Duponceau's  time  to  the  present,  and  numerous  other 
interesting  manuscripts. 


STATE  OF  DELAWARE. 

John  Marshall  Day  was  celebrated  at  a  meeting  of  the 
Bar  of  the  State  of  Delaware,  held  in  the  Supreme  Court 
room  of  the  State  at  an  open  session.  Mr.  Herbert  H. 
Ward,  the  Attorney -General  of  the  State,  presented  to  the 
court  a  minute  upon  the  life  and  achievements  of  Chief 
Justice  Marshall.  This  was  fittingly  responded  to  by 
Chief  Justice  Lore.  The  minute  and  response  were  or 
dered  spread  upon  the  records. 

Marshall  Day  was  further  celebrated  by  a  dinner  at  the 
Clayton  House  in  Wilmington,  which  was  attended  by 
members  of  the  Bar  of  the  State  and  city  and  by  the 
Chief  Justice,  Charles  B.  Lore,  by  John  K.  Nicholson, 
Chancellor,  and  by  Associate  Justices  Spruance,  Grubb, 
Pennewill  and  Boyce,  and  also  George  Gray,  the  United 
States  Circuit  Judge,  and  Edward  G.  Bradford,  District 
Judge  of  the  United  States  for  the  District  of  Delaware. 
Besides  the  principal  address  below  given,  addresses  were 
made  by  George  Gray,  James  Pennewill,  and  by  Levi  C. 
Bird  representing  the  New  Castle  County  Bar,  by  Henry 
Ridgley,  Jr.,  representing  the  Kent  County  Bar,  and  by 
Charles  F.  Richards,  representing  the  Sussex  County  Bar. 

The  presiding  officer,  in  introducing  the  principal 
speaker  of  the  occasion,  John  Bassett  Moore,  spoke  of  him 
as  a  native  of  the  State  of  Delaware,  and  fittingly  re 
ferred  to  his  public  services  as  professor  of  International 
Law  and  Diplomacy  at  Columbia  University,  as  Assistant 
Secretary  of  State,  and  to  his  History  and  Digest  of  In 
ternational  Arbitrations. 


John  Marshall  Memorial.  508 

Address  of  John  Bassett  Moore.1 

The  celebration  in  which  it  is  our  privilege  to-day  to 
participate  is  in  the  main  without  example.  The  deeds 
of  warriors,  performed  in  times  of  great  public  excite 
ment,  produce  by  their  immediate  effects  a  profound  im 
pression  on  the  popular  imagination,  and  are  commemo 
rated  in  song  and  in  story.  The  achievements  of  states 
men,  wrought  out  in  the  tumult  of  public  discussion,  and 
often  in  the  midst  of  armed  conflict,  lay  hold  on  the  gen 
eral  understanding  and  win  immediate  renown.  But  in 
the  event  which  we  are  met  to  commemorate  all  these 
accessories  were  lacking.  When,  a  hundred  years  ago, 
John  Marshall  assumed  the  office  of  Chief  Justice  of  the 
United  States,  his  advent  was  not  acclaimed,  nor  was 
there  anything  in  the  time  or  the  occasion  that  seemed 
to  invest  it  with  peculiar  significance.  Of  his  three  pred 
ecessors,  Jay,  Eutledge  and  Ellsworth,  the  second,  Eut- 
ledge,  after  sitting  one  term  under  a  recess  appointment, 
retired  in  consequence  of  his  rejection  by  the  Senate; 
and  neither  Jay  nor  Ellsworth,  though  both  were  men  of 
high  capacity,  had  found  in  their  judicial  station,  the  fu 
ture  importance  of  which  was  unforeseen,  an  opportunity 
for  the  full  display  of  their  powers,  either  of  mind  or  of 
office.  XThe  coming  of  Marshall  to  the  seat  of  justice 
marks  the  beginning  of  an  era  which  is  not  yet  ended, 
and  which  must  endure  so  long  as  our  system  of  govern 
ment  retains  the  essential  features  with  which  it  was 
originally  endowed.  With  him  really  began  the  process, 
peculiar  to  our  American  system,  of  the  development  of 
constitutional  law  by  means  of  judicial  decisions,  based 

i  This  address  was  published  in  the  Political  Science  Quarterly  for 
September,  1901,  vol.  XVI,  number  3,  p.  39& 


509  Delaware— Address  of  John  Bassett  Moore. 

upon  the  provisions  of  a  fundamental  written  instrument 
and  designed  for  its  exposition  and  enforcement.  By  the 
masterful  exercise  of  this  momentous  jurisdiction,  he 
profoundly  affected  the  course  of  the  national  life  and 
won  the  proud  title  of  the  Expounder  of  the  Constitution 
of  the  United  States.  This  great  achievement  has  given 
him,  as  a  judge,  an  exceptional  place  in  the  knowledge 
and  the  affections  of  the  American  people,  so  that  his  mem 
ory,  though  it  yet  remains  in  a  special  sense  the  treasure 
of  the  legal  profession,  is  celebrated  in  the  schools  of  the 
land  and  honored  in  the  halls  of  legislation. 

But  while  this  particular  achievement  has  caused  Mar 
shall  to  stand  pre-eminent  among  judges,  like  Webster 
among  statesmen,  as  the  Expounder  of  the  Constitu 
tion,  and  has  brought  him  within  the  range  of  popu 
lar  appreciation,  yet  it  is  not  on  this  foundation  alone 
that  his  fame  as  a  jurist  rests.  In  other  departments  of 
the  law  to  which  the  jurisdiction  of  the  Supreme  Court 
extends,  and  especially  in  the  department  of  the  law  of 
nations,  he  spread  the  rays  of  his  illuminative  genius. 
It  was  no  mere  spirit  of  encomium,  but  the  spontaneous 
homage  of  a  great  advocate,  who  was  not  obliged  by 
reason  of  any  deficiencies  of  his  own  to  withhold  from 
any  man  a  tribute  of  admiration,  that  led  William  Pink- 
ney  on  a  certain  occasion  to  exclaim:  "He  was  born  to 
be  the  Chief  Justice  of  any  country  in  which  he  lived." 

After  the  organization  of  the  National  Government, 
Marshall  consistently  supported  the  measures  of  Washing 
ton's  administration,  including  the  Jay  treaty,  and  became 
a  leader  of  the  Federalist  party,  which,  in  spite  of  Wash 
ington's  great  personal  hold  on  the  people,  was  in  a 
minority  in  Yirginia.  But  he  did  not  covet  public  office. 
He  declined  the  position  of  Attorney-General  of  the 


John  Marshall  Memorial.  510 

United  States,  which  was  offered  to  him  by  Washington, 
as  well  as  the  mission  to  France,  as  successor  to  Monroe. 
In  1T97,  however,  at  the  special  solicitation  of  President 
Adams,  he  accepted  the  post  of  envoy  extraordinary  and 
minister  plenipotentiary  to  France,  being  associated  in 
the  mission  with  Charles  Cotesworth  Pinckney,  of  South 
Carolina,  and  Elbridge  Gerry,  of  Massachusetts. 

Few  diplomatic  enterprises  have  had  so  strange  a  his 
tory.  When  the  plenipotentiaries  arrived  in  Paris,  the 
Directory  was  in  the  height  of  its  power  and  Talleyrand 
was  its  minister  of  foreign  affairs.  He  at  first  received 
the  plenipotentiaries  unofficially,  but  afterwards  inti 
mated  to  them,  through  his  private  secretary,  that  they 
could  not  have  a  public  audience  of  the  Directory  till 
their  negotiations  were  concluded.  Meanwhile,  they 
were  waited  upon  by  various  persons,  who  represented 
that,  in  order  to  effect  a  settlement  of  the  differences  be 
tween  the  two  countries,  it  would  be  necessary  to  place 
a  sum  of  money  at  the  disposal  of  Talleyrand,  as  a  douceur 
for  the  ministers  (except  Merlin,  the  minister  of  justice, 
who  was  already  making  enough  from  the  condemnation 
of  vessels),  and  also  to  make  a  loan  of  money  to  the  gov 
ernment.  The  plenipotentiaries,  though  they  at  first  re 
pulsed  these  suggestions,  at  length  offered  to  send  one  of 
their  number  to  America,  to  consult  the  government  on 
the  subject  of  a  loan,  provided  that  the  Directory  would 
in  the  meantime  suspend  proceedings  against  captured 
American  vessels.  This  offer  was  not  accepted ;  and  the 
plenipotentiaries,  after  further  conference  with  the 
French  intermediaries,  stated  that  they  considered  it  de 
grading  to  their  country  to  carry  on  further  indirect  in 
tercourse,  and  that  they  had  determined  to  receive  no 
further  propositions  unless  the  persons  who  bore  them 


Delaware — Address  of  John  Basset t  Moore. 

had  authority  to  treat.  In  April,  1798,  after  spending  in 
the  French  capital  six  months,  during  which  they  had 
with  Talleyrand  two  unofficial  interviews  and  exchanged 
with  him.  an  ineffectual  correspondence,  Pinckney  and 
Marshall  left  Paris.  Marshall  was  the  first  to  return  to 
the  United  States.  On  his  arrival,  he  was  greeted  with 
remarkable  demonstrations  of  respect  and  approval ;  for, 
although  his  mission  was  unsuccessful,  he  had  powerfully 
assisted  in  maintaining  a  firm  and  dignified  position  in 
the  negotiations. 

On  his  return  to  the  United  States,  Marshall  resumed 
the  practice  of  his  profession;  but  soon  afterwards,  at 
the  earnest  entreaty  of  Washington,  he  became  a  candi 
date  for  Congress,  declining  for  that  purpose  an  appoint 
ment  to  the  Supreme  Court  of  the  United  f States,  as 
successor  to  Mr.  Justice  Wilson.  He  was  elected  after 
an  exciting  canvass,  and  in  December,  1799,  took  his  seat. 
He  immediately  assumed  a  leading  place  among  the  sup 
porters  of  the  administration,  though  on  one  occasion  he 
exhibited  his  independence  of  mere  party  discipline  by 
voting  to  repeal  the  obnoxious  second  section  of  the  Sedi 
tion  Law.  But,  of  all  the  acts  by  which  his  course  in 
Congress  was  distinguished,  the  most  important  was  his 
defense  of  the  administration  in  the  case  of  Jonathan 
Robbins,  alias  Thomas  Nash.  By  the  twenty-seventh 
article  of  the  Jay  treaty  it  was  provided  that  fugitives 
from  justice  should  be  delivered  up  for  the  offense  of 
murder  or  of  forgery.  Under  this  stipulation  Robbins, 
alias  Nash,  was  charged  with  the  commission  of  the  crime 
of  murder  on  board  a  British  privateer  on  the  high  seas. 
He  was  arrested  on  a  warrant  issued  upon  the  affidavit 
of  the  British  consul  at  Charleston,  South  Carolina.  After 
his  arrest,  an  application  was  made  to  Judge  Bee,  sitting 


John  Marshall  Memorial.  512 

in  the  United  States  Circuit  Court  at  Charleston,  for  a 
writ  of  habeas  corpus.    While  Eobbins  was  in  custody, 
the  President  of  the  United  States,  John  Adams,  ad 
dressed  a  note  to  Judge  Bee,  requesting  and  advising 
him,  if  it  should  appear  that  the  evidence  warranted  it, 
to  deliver  the  prisoner  up  to  the  representatives  of  the 
British  government.  The  examination  was  held  by  Judge 
Bee,  and  Bobbins  was  duly  surrendered.     It  is  an  illus 
tration  of  the  vicissitudes  of  politics  that,  on  the  strength 
of  this  incident,  the  cry  was  raised  that  the  President 
had  caused  the  delivery  up  of  an  American  citizen  who 
had  been  impressed  into  the  British  service.     For  this 
charge  there  was  no  ground  whatever,  but  it  was  made 
to  serve  the  purposes  of  the  day  and  was  one  of  the  causes 
of  the  popular  antagonism  to  the  administration  of  John 
Adams.     "When  Congress  met  in  December,  1799,  a  reso 
lution  was  offered  by  Mr.  Livingston,  of  New  York,  se 
verely  condemning  the  course  of  the  administration.    Its 
action  was  defended  in  the  House  of  Eepresentatives  by 
Marshall,  on  two  grounds :  First,  that  the  case  was  one 
clearly  within  the  provisions  of  the  treaty ;  and  second, 
that,  no  act  having  been  passed  by  Congress  for  the  exe 
cution  of  the  treaty,  it  was  incumbent  upon  the  President 
to  carry  it  into  effect  by  such  means  as  happened  to  be 
within  his  power.     The  speech  which  Marshall  delivered 
on  that  occasion  is  said  to  have  been  the  only  one  that 
he  ever  revised  for  publication.     It  "  at  once  placed  him," 
as  Mr.  Justice  Story  has  well  said,  "in  the  front  rank  of 
constitutional  statesmen,  silenced  opposition,  and  settled 
forever  the  points  of  national  law  upon  which  the  con 
troversy  hinged."   So  convincing  was  it  that  Mr.  Gallatin, 
who  had  been  requested  by  Mr.  Livingston  to  reply,  de- 


513  Delaware—  Address  of  John  Bassett  Moore. 

clined  to  make  the  attempt,  declaring  the  argument  to 
be  unanswerable. 

In  May,  1800,  on  the  reorganization  of  President 
Adams's  cabinet,  Marshall  unexpectedly  received  the  ap 
pointment  of  Secretary  of  War.  He  declined  it;  but,  the 
office  of  Secretary  of  State  also  having  become  vacant,  he 
accepted  that  position,  which  he  held  till  the  4th  of  the 
following  March.  Of  his  term  as  Secretary  of  State, 
which  lasted  less  than  ten  months,  little  has  been  said; 
nor  was  it  distinguished  by  any  event  of  unusual  impro- 
tance,  save  the  conclusion  of  the  Convention  with  France 
of  September  30, 1800,  the  negotiation  of  which,  at  Paris, 
was  already  in  progress,  under  instructions  given  by  his 
predecessor,  when  he  entered  the  Department  of  State. 
The  war  between  France  and  Great  Britain,  growing  out 
of  the  French  Revolution,  was  still  going  on.  The  ques 
tions  with  which  he  was  required  to  deal  were  not  new; 
and,  while  he  exhibited  in  the  discussion  of  them  his  usual 
strength  and  lucidity  of  argument,  he  had  little  oppor 
tunity  to  display  a  capacity  for  negotiation.  Only  a  few 
of  his  State  papers  have  been  printed,  nor  are  those  that 
have  not  been  published  of  special  importance.  He  gave 
instructions  to  our  Minister  to  Great  Britain  in  relation 
to  commercial  restrictions,  impressments  and  orders  in 
council  violative  of  the  law  of  nations;  to  our  Minister 
to  France,  in  regard  to  the  violations  of  neutral  rights  per 
petrated  by  that  government;  and  to  our  Minister  to 
Spain,  concerning  infractions  of  international  law  com 
mitted,  chiefly  by  French  authorities,  within  the  Spanish 
jurisdiction.  Of  these  various  State  papers,  the  most 
notable  was  that  which  he  addressed  on  September  20, 
1800,  to  Rufus  King,  then  United  States  Minister  at  Lon 
don.  Reviewing,  in  this  instruction,  the  policy  which 
VOL.  I— 33 


John  Marshall  Memorial.  514 

his  government  had  pursued,  and  to  which  it  still  adhered, 
in  the  conflict  between  the  European  powers,  he  said: 

"  The  United  States  do  not  hold  themselves  in  any  de 
gree  responsible  to  France  or  to  Britain  for  their  negotia 
tions  with  the  one  or  the  other  of  these  powers;  but  they 
are  ready  to  make  amicable  and  reasonable  explanations 
with  either.  ...  It  has  been  the  object  of  the  Amer 
ican  Government,  from  the  commencement  of  the  pres 
ent  war,  to  preserve  between  the  belligerent  powers  an 
exact  neutrality.  .  .  .  The  aggressions,  sometimes  of 
one  and  sometimes  of  another  belligerent  power,  have 
forced  us  to  contemplate  and  prepare  for  war  as  a  prob 
able  event.  We  have  repelled,  and  we  will  continue  to 
repel,  injuries  not  doubtful  in  their  nature,  and  hostilities 
not  to  be  misunderstood.  But  this  is  a  situation  of  neces 
sity,  not  of  choice.  It  is  one  in  which  we  are  placed, 
not  by  our  own  acts,  but  by  the  acts  of  others,  and  which 
we  [shall]  change  so  soon  as  the  conduct  of  others  will 
permit  us  to  change  it." 

For  a  month  Marshall  held  both  the  office  of  Secretary 
of  State  and  that  of  Chief  Justice ;  but  at  the  close  of 
John  Adams's  administration  he  devoted  himself  exclu 
sively  to  his  judicial  duties,  never  performing  there 
after  any  other  public  service,  save  that  late  in  life  he 
acted  as  a  member  of  the  convention  to  revise  the  Con 
stitution  of  Virginia.  It  is  an  interesting  fact  that,  prior 
to  his  appointment  as  Chief  Justice,  Marshall  had  ap 
peared  only  once  before  the  Supreme  Court,  and  on  that 
occasion  he  was  unsuccessful.  This  appearance  was  in  the 
case  of  Ware  v.  Hylton,1  which  was  a  suit  brought  by  a 
British  creditor  to  compel  the  payment  by  a  citizen  of  Vir 
ginia  of  a  pre-Kevolutionary  debt,  in  conformity  with 

1 3  Dallas,  199. 


515  Delaware— Address  of  John  Basseti  Moore. 

the  stipulations  of  the  treaty  of  peace.  During  the  Bev- 
olutionary  War  various  States,  among  which  was  Vir 
ginia,  passed  acts  of  sequestration  and  confiscation,  by 
which  it  was  provided  that  if  the  American  debtor  should 
pay  into  the  State  treasury  the  debt  due  to  his  British 
creditor,  such  payment  should  constitute  an  effectual  plea 
in  bar  to  a  subsequent  action  for  the  recovery  of  the  debt. 
When  the  representatives  of  the  United  States  and  Great 
Britain  met  at  Paris  to  negotiate  for  peace,  the  question 
of  the  confiscated  debts  became  a  subject  of  controversy, 
especially  in  connection  with  that  of  the  claims  of  the 
loyalists  for  the  confiscation  of  their  estates.  Franklin 
and  Jay,  although  they  did  not  advocate  the  policy  of  con 
fiscating  debts,  hesitated,  chiefly  on  the  ground  of  a  want 
of  authority  in  the  existing  National  Government  to  over 
ride  the  acts  of  the  States.  But  when  John  Adams  ar 
rived  on  the  scene  he  delivered  one  of  those  dramatic 
strokes  of  which  he  was  a  master,  and  ended  the  discus 
sion  by  suddenly  declaring,  in  the  presence  of  the  British 
plenipotentiaries,  that,  so  far  as  he  was  concerned,  he 
"  had  no  notion  of  cheating  anybody;  "  that  the  question 
of  paying  debts  and  the  question  of  compensating  the 
loyalists  were  two ;  and  that,  while  he  was  opposed  to  com 
pensating  the  loyalists,  he  would  agree  to  a  stipulation  to 
secure  the  payment  of  debts.  It  was  therefore  provided 
in  the  fourth  article  of  the  treaty  that  creditors  on  either 
side  should  meet  with  no  lawful  impediment  to  the  recov 
ery  in  full  sterling  money  of  ~bonafide  debts  contracted 
prior  to  the  war.  This  stipulation  is  remarkable,  not  only 
as  the  embodiment  of  an  enlightened  policy,  but  also  as 
perhaps  the  strongest  assertion  to  be  found  in  the  acts 
of  that  time  of  the  power  and  authority  of  the  National 
Government.  Indeed,  when  the  British  creditors,  after 


John  Marshall  Memorial. 

the  establishment  of  peace,  sought  to  proceed  in  the  State 
courts,  they  found  the  treaty  unavailing,  since  those  tri 
bunals  held  themselves  still  to  be  bound  by  the  local  stat 
utes.  In  order  to  remove  this  difficulty,  as  well  as  to 
provide  a  rule  for  the  future,  there  was  inserted  in  the 
Constitution  of  the  United  States  the  clause  declaring 
that  treaties  then  made,  or  which  should  be  made,  under 
the  authority  of  the  United  States,  should  be  the  supreme 
law  of  the  land,  binding  on  the  judges  in  every  State, 
anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding.  On  the  strength  of  this  pro 
vision  the  question  of  the  debts  was  raised  again,  and  was 
finally  brought  before  the  Supreme  Court  in  the  case  of 
Ware  v.  Hylton.  Marshall  appeared  for  the  State  of  Vir 
ginia,  to  oppose  the  collection  of  the  debt.  He  based  his 
contention  on  twro  grounds:  First,  that  by  the  law  of 
nations  the  confiscation  of  private  debts  was  justifiable ; 
second,  that  as  the  debt  had,  by  the  law  of  Virginia,  been 
extinguished  by  its  payment  into  the  State  treasury,  and 
had  thus  ceased  to  be  due,  the  stipulation  of  the  treaty 
was  inapplicable,  since  there  could  be  no  creditor  without 
a  debtor. 

It  is  not  strange  that  this  argument  was  unsuccessful. 
"While  it  doubtless  was  the  best  that  the  cause  admitted,, 
it  may  serve  to  illustrate  the  right  of  the  suitor  to  have 
his  case,  no  matter  how  weak  it  may  be,  fully  and  fairly 
presented  for  adjudication.  On  the  question  of  the  right 
of  confiscation  the  judges  differed,  one  holding  that  such 
a  right  existed,  while  another  denied  it,  two  doubted,  and 
the  fifth  was  silent.  But  as  to  the  operation  of  the  treaty, 
all  but  one  agreed  that  it  restored  to  the  original  creditor 
his  right  to  sue,  without  regard  to  the  validity  or  the  in 
validity  of  the  Virginia  statute. 


517  Delaware —  Address  of  John  Basset f  Moore. 

When  Marshall  took  his  seat  upon  the  bench,  the  Su 
preme  Court,  since  its  organization  in  1790,  had  rendered 
only  six  decisions  involving  constitutional  questions. 
From  1801  to  1835,  in  the  thirty-four  years  during  which 
he  presided  in  that  great  tribunal,  sixty-two  such  decisions 
were  given,  and  in  thirty-six  of  these  the  opinion  of  the 
court  was  written  by  Marshall.  In  the  remaining  twenty- 
six  the  preparation  of  the  opinions  was  distributed  among 
his  associates,  who  numbered  five  before  1808,  and  after 
that  date  six.  During  the  whole  period  of  his  service  his 
dissenting  opinions  numbered  eight,  only  one  of  which 
involved  a  constitutional  question.  Nor  was  the  suprem 
acy  which  this  record  indicates  confined  to  questions 
of  constitutional  law.  The  reports  of  the  court  during 
Marshall's  tenure  fill  thirty  volumes,  containing  1,215 
cases.  In  ninety-four  of  these  no  opinions  were  filed, 
while  fifteen  were  decided  "by  the  court."  In  the  re 
maining  1,106  cases  the  opinion  of  the  court  was  deliv 
ered  by  Marshall  in  519,  or  nearly  one-half.1 

JSTo  opportunity  is  afforded  by  the  present  occasion  for 
an  exposition  of  the  questions  of  constitutional  law  de 
cided  by  the  Supreme  Court  during  Marshall's  term  of 
service.  Such  an  exposition  would  in  reality  involve  a 
comprehensive  examination  of  the  foundations  on  which 
our  constitutional  system  has  been  reared;  and  it  is  im 
practicable  to  do  more  than  refer  in  the  briefest  terms  to 
some  of  the  leading  cases.  In  one  of  his  earliest  opinions 
he  established  the  vital  principle  that  an  act  of  Congress 
repugnant  to  the  Constitution  is  void.2  He  defined  the 

1  Hitchcock,  The  Development  of  the  Constitution  as  influenced  by 
Chief  Justice  Marshall.    (1889.) 

2  Marbury  v.  Madison,  1  Cranch,  137. 


John  Marshall  Memorial.  518 

law  of  treason.1  He  declared  the  invalidity  of  State  laws 
impairing  the  obligations  of  contracts,2  while  he  affirmed 
the  right  of  the  States  to  pass  insolvency  laws,  in  the  ab 
sence  of  the  exercise  by  Congress  of  its  power  "  to  estab 
lish  uniform  laws  on  the  subject  of  bankruptcies." 3  He 
upheld  the  supremacy  of  the  judgments  of  the  courts  of 
the  United  States  as  against  inconsistent  State  laws.4  He 
maintained  the  authority  of  Congress  to  make  all  laws 
necessary  and  proper  to  carry  into  effect  the  powers 
vested  by  the  Constitution  in  the  government  of  the 
United  States,Mind,  in  the  exercise  of  powers  fairly  im 
plied,  to  incorporate  a  bank,  free  from  the  taxation,  con 
trol  or  obstruction  of  any  State.6  He  affirmed  that  the 
power  of  Congress  to  regulate  commerce  embraced  all 
the  various  forms  of  intercourse,  including  navigation, 
and  that  u  wherever  commerce  among  the  States  goes, 
the  judicial  power  of  the  United  States  goes  to  protect  it 
from  invasion  by  State  legislatures."17 

To  the  rule  that  Marshall's  great  constitutional  opin 
ions  continue  to  be  received  as  authority,  perhaps  the 
chief  exception  is  that  delivered  in  the  Dartmouth  College 
case,8  the  particular  point  of  which  —  that  acts  of  incor 
poration  constitute  contracts  which  the  State  legislatures 

lExparte  Bollraan  &  Swartwout,  4  Cranch,  75;  United  States  v. 
Aaron  Burr,  Ibid.,  App. 

a  Fletcher  v.  Peck,  6  Cranch,  87;  Dartmouth  College  v.  Woodward, 
4  Wheat.  518. 

3  Sturges  v.  Crowninshield,  4  Wheat.  123. 

< United  States  v.  Peters,  5  Cranch,  136;  Cohens  V.Virginia,  6 
Wheat,  264. 

8  United  States  v.  Fisher,  2  Cranch,  358. 

«McCulloch  v.  Maryland,  4  Wheat.  316,  421.  • 

?  Gibbons  v.  Ogden,  9  Wheat.  1 ;  Brown  v.  Maryland,  12  Wheat.  419. 

8  Dartmouth  College  v.  Woodward,  4  Wheat.  518. 


519  Delaware— Address  of  John  Bassett  Moore. 

can  neither  alter  nor  revoke  —  has  been  greatly  limited 
by  later  decisions,  while  its  effect  has  been  generally  ob 
viated  by  express  reservations  of  the  right  of  amendment 
and  repeal.  With  rare  exceptions,  however,  his  consti 
tutional  opinions  not  only  remain  unshaken,  but  continue 
to  form  the  very  warp  and  woof  of  the  law,  and  "can 
scarcely  perish  but  with  the  memory  of  the  Constitution 
itself."  ISTor  should  we,  in  estimating  his  achievements, 
lose  sight  of  the  almost  uncontested  ascendency  which 
he  exercised,  in  matters  of  constitutional  law,  over  the 
members  of  the  tribunal  in  which  he  presided,  in  spite 
of  what  might  have  been  supposed  to  be  their  predilec 
tions.  When  constitutional  questions  trench,  as  they 
often  do,  on  the  domain  of  statesmanship,  it  is  natural, 
especially  where  precedents  are  lacking,  that  judges 
should  divide  upon  them  in  accordance  with  the  views  of 
government  maintained  by  the  political  parties  with 
which  they  previously  acted;  and,  after  1811,  a  majority 
of  Marshall's  associates  on  the  bench  held  their  appoint 
ment  from  administrations  of  the  party  opposed  to  that 
to  which  he  had  belonged.  This  circumstance,  however, 
does  not  appear  to  have  disturbed  the  consistent  and 
harmonious  development  of  the  system  to  which  he  was 
devoted ;  and  it  was  in  the.  second  half  of  his  term  of 
service  that  many  of  the  most  important  cases  —  such  as 
McCulloch  v.  Maryland,  Cohens  v.  Virginia,  and  Gibbons 
v.  Ogden,  in  which  he  asserted  the  powers  of  the  National 
Government  —  were  decided. 

But  it  is  not  alone  upon  his  decisions  on  questions  of 
constitutional  law  that  Marshall's  fame  as  a  judge  rests. 
So  marked  was  his  supremacy  in  that  domain,  and  so  pro 
foundly  did  his  opinions  affect  the  course  of  the  National 
development,  that  we  are  accustomed  to  think  of  him  in 


John  Marshall  Memorial.  520 

the  United  States  only  as  the  expounder  of  the  Constitu 
tion.  This  is  not,  however,  his  sole  title  to  fame.  He  is 
known  in  other  lands  as  the  author  of  important  opin 
ions  on  questions  which  deeply  concern  the  welfare  and 
intercourse  of  all  nations.  In  the  treatment  of  questions 
of  international  law  he  exhibited  the  same  traits  of  mind, 
the  same  breadth  and  originality  of  thought,  the  same 
power  in  discovering  and  the  same  certainty  in  applying 
fundamental  principles  that  distinguished  him  in  the 
realm  of  constitutional  discussions;  and  it  was  his  lot  in 
more  than  one  case  to  blaze  the  way  in  the  establishment 
of  rules  of  international  conduct.  During  the  period  of 
his  judicial  service,  decisions  were  rendered  by  the  Su 
preme  Court  in  one  hundred  and  ninety-five  cases  in 
volving  questions  of  international  law,  or  in  some  way 
affecting  international  relations.  In  eighty  of  these  cases 
the  opinion  of  the  court  was  delivered  by  Marshall;  in 
thirty -seven  by  Mr.  Justice  Story ;  in  twenty-eight,  by 
Mr.  Justice  Johnson;  in  nineteen,  by  Mr.  Justice  Wash 
ington;  in  fourteen,  by  Mr.  Justice  Livingston;  in  five, 
by  Mr.  Justice  Thompson;  and  in  one  each,  by  Justices 
Baldwin,  Gushing  and  Duvall.  In  eight  the  decision  was 
rendered  "by  the  court."  In  five  cases  Marshall  dis 
sented.  As  an  evidence  of  the  respect  paid  to  his  opin 
ions  by  the  publicists,  the  fact  may  be  pointed  out  that 
Wheaton,  in  the  first  edition  of  his  Elements  of  Inter 
national  Law,  makes  one  hundred  and  fifty  judicial  cita 
tions,  of  which  one  hundred  and  five  are  English  and 
forty-five  American,  the  latter  being  mostly  Marshall's. 
In  the  last  edition  he  makes  two  hundred  and  fourteen 
similar  citations,  of  which  one  hundred  and  thirty-five 
are  English  and  seventy-nine  American,  the  latter  being 
largely  Marshall's;  and  it  is  proper  to  add  that  one  of  the 


521  Delaware  — Address  of  John  Bassett  Moore. 

distinctive  marks  of  his  last  edition  is  the  extensive  in 
corporation  into  his  text  of  the  words  of  Marshall's  opin 
ions.  Out  of  one  hundred  and  ninety  cases  cited  by  Hall, 
a  recent  English  publicist  of  pre-eminent  merit,  fifty-four 
are  American,  and  in  more  than  three-fifths  of  these  the 
opinions  are  Marshall's. 

One  of  the  most  far-reaching  of  all  his  opinions  on 
questions  of  international  law  was  that  which  he  deliv 
ered  in  the  case  of  the  schooner  Exchange,  decided  by 
the  Supreme  Court  in  1812.1  In  preparing  this  opinion  he 
was,  as  he  declared,  compelled  to  explore  "  an  unbeaten 
path,  with  few,  if  any,  aids  from  precedents  or  written 
laws ;  "  for  the  status  of  a  foreign  man-of-war  in  a  friendly 
port  had  not  then  been  defined,  even  by  the  publicists. 
The  "  Exchange  "  was  an  American  vessel,  which  had  been 
captured  and  confiscated  by  the  French  under  the  Ram- 
bouillet  decree,  a  decree  which  both  the  Executive  and 
the  Congress  of  the  United  States  had  declared  to  con 
stitute  a  violation  of  the  law  of  nations.  She  was  after 
wards  converted  by  the  French  government  into  a  man- 
of-war  and  commissioned  under  the  name  of  the  "  Balaou." 
In  this  character  she  entered  a  port  of  the  United  States, 
where  she  was  libeled  by  the  original  American  owners 
for  restitution.  Reasoning  by  analogy,  Marshall,  in  a 
remarkably  luminous  opinion,  held  that  the  vessel,  as  a 
French  man-of-war,  was  not  subject  to  the  jurisdiction  of 
the  ordinary  tribunals;  and  his  opinion  forms  the  basis 
of  the  law  on  the  subject  at  the  present  day.2 

By  this  decision  the  rightfulness  or  the  wrongfulness 

1  Schooner  Exchange  v.  McFaddon,  7  Cranch,  116. 

2  This  opinion  was  textually  incorporated  by  Wheaton  into  his  Ele 
ments,  where  it  forms  the  statement  of  the  law  on  various  topics. 
Dana's  Wheaton,  pp.  154-162. 


John  Marshall  Memorial.  522 

of  the  capture  and  condemnation  of  the  "  Exchange  "  was 
left  to  be  determined  by  the  two  governments  as  a  polit 
ical  question.  In  this  respect  Marshall  maintained,  as  be 
tween  the  different  departments  of  government,  when 
dealing  with  questions  of  foreign  affairs,  a  distinction 
which  he  afterwards  sedulously  preserved,  confining  the 
jurisdiction  of  the  courts  to  judicial  questions.  Thus,  he 
laid  it  down  in  the  clearest  terms  that  the  recognition  of 
national  independence,  or  of  belligerency,  being  in  its 
nature  a  political  act,  belongs  to  the  political  branch  of 
the  government,  and  that  in  such  matters  the  courts  fol 
low  the  political  branch.1  Referring  on  another  occa 
sion  to  a  similar  question,  he  said : 

"  In  a  controversy  between  two  nations  concerning  na 
tional  boundary,  it  is  scarcely  possible  that  the  courts  of 
either  should  refuse  to  abide  by  the  measures  adopted  by 
its  own  government.  ...  If  those  departments  which 
are  intrusted  with  the  foreign  intercourse  of  the  nation, 
which  assert  and  maintain  its  interests  against  foreign 
powers,  have  unequivocally  asserted  its  rights  of  domin 
ion  over  a  country  of  which  it  is  in  possession,  and  which 
it  claims  under  a  treaty;  if  the  legislature  has  acted  on 
the  construction  thus  asserted,  it  is  not  in  its  own  courts 
that  this  construction  is  to  be  denied." 2 

He  also  asserted  the  right  of  the  government  to  en 
large  the  national  domain,  saying: 

"The  Constitution  confers  absolutely  on  the  government 
of  the  Union  the  power  of  making  war  and  of  making 
treaties;  consequently,  that  government  possesses  the 

4 United  States  v.  Palmer,  3  Wheaton,  610;  The  Divina  Pastora,  4 
Wheaton,  52. 
^  Foster  v.  Neilson,  2  Pet.  253. 


523  Delaware — Address  of  John  Bassett  Moore. 

power  of  acquiring  territory,  either  by  conquest  or  by 
treaty."  l 

But  he  held  the  rights  of  private  property  in  such  case 
to  be  inviolate.2  The  most  luminous  exposition  of  dis 
covery  as  a  source  of  title,  and  of  the  nature  of  Indian 
titles,  is  to  be  found  in  one  of  his  opinions.3 

A  fundamental  doctrine  of  international  law  is  that  of 
the  equality  of  nations.  If  a  clear  and  unequivocal  ex 
pression  of  it  be  desired,  it  may  be  found  in  the  opinion 
of  Marshall  in  the  case  of  The  Antelope.4 

"  No  nation  [he  declared]  can  make  a  law  of  nations. 
No  principle  is  more  universally  acknowledged  than  the 
perfect  equality  of  nations.  Russia  and  Geneva  have 
equal  rights." 

The  exemption  from  seizure  and  confiscation  of  the 
goods  of  a  neutral  on  board  of  an  armed  vessel  was  main 
tained  by  him  in  the  case  of  The  Nereide.5  When  the 
representatives  of  the  United  States  sought  to  establish 
at  Geneva  the  liability  of  Great  Britain  for  the  depreda 
tions  of  the  "Alabama"  and  other  Confederate  cruisers 
fitted  out  in  British  ports  in  violation  of  neutrality,  one 
of  the  strongest  authorities  on  which  they  relied  was  his 
opinion  in  the  case  of  The  Gran  Para.6 

In  the  decision  of  prize  cases,  Marshall,  unlike  some  of 
his  associates,  was  disposed  to  moderate  the  rigor  of  the 
English  doctrines  as  laid  down  by  Sir  William  Scott. 

lAm.  Ins.  Co.  v.  Canter,  1  Pet.  511. 

2Soulard  v.  United  States,  4  Pet.  511;  United  States  u.  Percheman, 
7  Pet  51 ;  Keene  v.  McDonough,  8  Pet.  308. 
*  Johnson  v.  Mclntosh,  8  Wheaton,  543* 

4  10  Wheaton,  66;  11  Wheaton,  413. 

5  9  Cranch,  388. 

e  7  Wheaton,  471. 


John  Marshall  Memorial.  524 

"  I  respect  Sir  William  Scott  [he  declared  on  a  certain 
occasion]  as  I  do  every  truly  great  man ;  and  I  respect 
his  decisions;  nor  should  I  depart  from  them  on  light 
grounds ;  but  it  is  impossible  to  consider  them  attentively 
without  perceiving  that  his  mind  leans  strongly  in  favor 
of  the  captors."  * 

This  liberal  disposition,  blended  with  independence  of 
judgment,  led  Marshall  to  dissent  from  the  decision  of 
the  court  in  two  well-known  cases.  In  one  of  these, 
which  is  cited  by  Phillimore  as  the  "  great  case  "  of  The 
Venus,2  it  was  held  that  the  property  of  an  American 
citizen  domiciled  in  a  foreign  country  became,  on  the 
breaking  out  of  war  with  that  country,  immediately 
confiscable  as  enemy's  property,  even  though  it  was 
shipped  before  he  had  knowledge  of  the  war.  Marshall 
dissented,  maintaining  that  a  mere  commercial  domicile 
ought  not  to  be  presumed  to  continue  longer  than  the 
state  of  peace,  and  that  the  fate  of  the  property  should 
depend  upon  the  conduct  of  the  owner  after  the  outbreak 
of  the  war,  in  continuing  to  reside  and  trade  in  the 
enemy's  country  or  in  taking  prompt  measures  to  return 
to  his  own.  In  the  other  case  —  that  of  The  Commercen 3 — 
he  sought  to  disconnect  the  war  in  which  Great  Britain 
was  engaged  on  the  continent  of  Europe  from  that  which 
she  was  carrying  on  with  the  United  States,  and  to  af 
firm  the  right  of  her  Swedish  ally  to  transport  supplies 
to  the  British  army  in  the  Peninsula  without  infringing 
the  duties  of  neutrality  toward  the  United  States.  As 
to  his  opinion  in  the  case  of  The  Yenus,  Chancellor  Kent 

i  The  Venus,  8  Cranch,  253,  299. 
28Cranch,  253. 
» 1  Wheaton,  383. 


525  Delaware  —  Address  of  John  Bassett  Moore. 

declared  that  there  was  "no  doubt  of  its  superior  solidity 
and  justice;"  and  it  must  be  admitted  that  his  opinion 
in  the  case  of  The  Commercen  rested  on  strong  logical 
grounds,  since  the  United  States  and  the  allies  of  Great 
Britain  in  the  war  on  the  Continent  never  considered 
themselves  as  enemies. 

It  is  not,  however,  by  any  means  essential  to  Marshall's 
pre-eminence  as  a  judge,  to  show  that  his  numerous  opin 
ions  are  altogether  free  from  error  or  inconsistency.  In 
one  interesting  series  of  cases,  relating  to  the  power  of  a 
nation  to  enforce  prohibitions  of  commerce  by  the  seiz 
ure  of  foreign  vessels  outside  territorial  waters,  the  views 
which  he  originally  expressed,  in  favor  of  the  existence 
of  such  a  right,1  appear  to  have  undergone  a  marked,  if 
not  radical,  change  in  favor  of  the  wise  and  salutary  ex 
emption  of  ships  from  visitation  and  search  on  the  high 
seas  in  time  of  peace2 — a  principle  which  he  affirmed  on 
more  than  one  occasion.8  In  the  reasoning  of  another 
case,  though  not  in  its  result,  we  may  perhaps  discern 
traces  of  the  preconceptions  formed  by  the  advocate  in 
the  argument  concerning  the  British  debts.4  This  was 
the  case  of  Brown  v.  United  States,5  which  involved  the 

1  Church  v.  Hubbart,  2  Cranch,  187. 

2  Rose  v.  Himely,  4  Cranch,  241.  It  was  argued  by  Mr.  E.  J.  Phelps, 
in  the  Fur  Seal  Arbitration,  that  the  views  expressed  by  Marshall  in 
Church  v.  Hubbart,  2  Cranch,  187,  were  adopted  by  the  Supreme 
Court  in  Hudson  v.  Guestier,  6  Cranch,  281.    The  latter  case,  how 
ever,  merely  decided  that  the  sentence  of  a  foreign  court  is  conclu 
sive  as  to  the  property  condemned  by  it,  and  that  it  is  not  in  this 
respect  judicially  reviewable  by  the  court  of  another  country.  Mar 
shall  did  not  concur  in  this  decision, 

3  The  Antelope,  10  Wheaton,  66. 

4  Supra,  p.  516. 
«  8  Cranch,  110. 


John  Marshall  Memorial.  526 

question  of  the  confiscability  of  the  private  property  of 
an  enemy  on  land,  by  judicial  proceedings,  in  the  ab 
sence  of  an  act  of  Congress  expressly  authorizing  such 
proceedings.  On  the  theory  that  war  renders  all  prop 
erty  of  the  enemy  liable  to  confiscation,  Mr.  Justice 
Story,  with  the  concurrence  of  one  other  member  of  the 
court,  maintained  that  the  act  of  Congress  declaring  war 
of  itself  gave  ample  authority  for  the  purpose.  The  ma 
jority  held  otherwise,  and  Marshall  delivered  the  opinion. 
Referring  to  the  practice  of  nations  and  the  writings  of 
publicists,  he  declared  that,  according  to  "  the  modern 
rule,"  "  tangible  property  belonging  to  an  enemy  and 
found  in  the  country  at  the  commencement  of  war  ought 
not  to  be  immediately  confiscated ; "  that  "  this  rule  " 
seemed  to  be  "  totally  incompatible  with  the  idea  that 
war  does  of  itself  vest  the  property  in  the  belligerent 
government;"  and,  consequently,  that  the  declaration 
of  war  did  not  authorize  the  confiscation.  Since  effect 
was  thus  given  to  the  modern  usage  of  nations,  it  was 
unnecessary  to  declare,  as  he  did  in  the  course  of  his 
opinion,  that  "  war  gives  to  the  sovereign  full  right  to 
take  the  persons  and  confiscate  the  property  of  the  en 
emy,  wherever  found,"  and  that  the  "  mitigations  of  this 
rigid  rule,  which  the  humane  and  wise  policy  of  modern 
times  has  introduced  into  practice,"  though  they  "  will 
more  or  less  affect  the  exercise  of  this  right,"  "  cannot 
impair  the  right  itself."  Nor  were  the  two  declarations 
quite  consistent.  The  supposition  that  usage  may  render 
unlawful  the  exercise  of  a  right,  but  cannot  impair  the 
right  itself,  is  at  variance  with  sound  theory.  Between 
the  effect  of  usage  on  rights  and  on  the  exercise  of  rights, 
the  law  draws  no  precise  distinction.  A  right  derived 


527  Delaware — Address  of  John  Bassett  Moore. 

from  custom  acquires  no  immutability  or  immunity  from 
the  fact  that  the  practices  out  of  which  it  grew  were 
ancient  and  barbarous.  We  may,  therefore,  ascribe  the 
dictum  in  question  to  the  influence  of  preconceptions, 
and  turn  for  the  true  theory  of  the  law  to  an  opinion  of 
the  same  great  judge,  delivered  twenty  years  later,  in 
which  he  denied  the  right  of  the  conqueror  to  confiscate 
private  property,  on  the  ground  that  it  would  violate 
"  the  modern  usage  of  nations,  which  has  become  law." l 
United  with  extraordinary  powers  of  mind  we  find  in 
Marshall  the  greatest  simplicity  of  life  and  character. 
In  this  union  of  simplicity  and  strength  he  illustrated 
the  characteristics  of  the  earlier  period  of  our  history. 
He  has  often  been  compared  with  the  great  judges  of 
other  countries.  He  has  been  compared  with  Lord  Mans 
field;  and,  although  he  did  not  possess  the  extensive 
learning  and  elegant  accomplishments  of  that  renowned 
jurist,  the  comparison  is  not  inappropriate  when  we  con 
sider  their  breadth  of  understanding  and  powers  of  rea 
soning;  and  yet  Mansfield,  as  a  member  of  the  House  of 
Lords,  defending  the  prerogatives  of  the  Crown  and  Par 
liament,  and  Marshall,  as  an  American  patriot,  sword  in 
hand,  resisting  in  the  field  the  assumptions  of  imperial 
power,  represent  opposite  conceptions.  He  has  been 
compared  with  Lord  Eldon;  and  it  may  be  that  in  fine 
ness  of  discrimination  and  delicate  perceptions  of  equity 
he  was  excelled  by  that  famous  Lord  Chancellor;  and 
yet  no  greater  contrast  could  be  afforded  than  that  of 
Eldon's  uncertainty  and  procrastination  on  the  bench 
with  Marshall's  bold  and  masterful  readiness.  He  has 
been  compared  with  Lord  Stowell ;  and  it  may  be  con- 

i  United  States  v.  Percheman,  7  Peters,  51. 


John  Marshall  Memorial.  528- 

ceded  that  in  clearness  of  perception,  skill  in  argument, 
and  elegance  of  diction  Lord  Stowell  has  seldom,  if  ever,, 
been  surpassed.  And  yet  it  may  be  said  of  Marshall  that, 
in  the  strength  and  clearness  of  his  conceptions,  in  the 
massive  force  and  directness  of  his  reasoning,  and  in  the 
absolute  independence  and  fearlessness  with  which  he 
announced  his  conclusions,  he  presents  a  combination  of 
qualities  which  not  only  does  not  suffer  by  any  compari 
son,  but  which  was  also  peculiarly  his  own. 


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